Appeals (1) from an order of the Supreme Court (Ingraham, J.), entered June 25, 1993 in Madison County, which, inter alia, denied plaintiff’s motion to compel discovery, and (2) from an order of said court, entered September 17, 1993 in Madison County, which, inter alia, granted defendants’ motion for summary judgment dismissing the complaint.
Plaintiff brought this action to recover a commission allegedly due and owing for his services in procuring a lessee for real property owned by defendants in the City of Oneonta, Otsego County. After defendants answered the complaint, which asserted a single cause of action sounding in breach of contract, plaintiff moved to compel compliance with certain discovery demands previously served on defendants. Thereafter, defendants moved for summary judgment; plaintiff opposed that motion and cross-moved for, inter alia, permission to amend the complaint to assert two additional causes of action, one seeking reformation predicated on mutual mistake and the second based upon quantum meruit.
On the return date of the summary judgment motion, defendants delivered the documents requested by plaintiff, and after granting plaintiff additional time to review the information contained therein, during which plaintiff’s proposed amended complaint was submitted, Supreme Court entered an interim order dismissing the discovery motion as moot, accepting the amended complaint for review and granting plaintiff permission to submit additional evidence in opposition to the
Plaintiff contends that the motion for summary judgment should have been denied, because once his motion to amend was granted, the amended complaint—though apparently not served, and therefore of dubious vitality (see, 6 Carmody-Wait 2d, NY Prac §§ 34:6, 34:7, at 54-56)—superseded the original complaint, and inasmuch as no answer to the new complaint had been served, issue had not been joined with respect thereto, precluding the granting of summary judgment (see, CPLR 3212 [a]; City of Rochester v Chiarella,
The breach of contract claim is clearly without foundation as the proffered agreement, by its terms, only entitles plaintiff to a commission if the property is sold, not if it is merely leased. The fact that a prior draft of the commission agreement—which was penned by plaintiff himself—expressly provided for a commission in the event of a lease, plainly indicates an intention to exclude such a transaction from the ambit of the finally executed agreement. Furthermore, we find plaintiff’s attempt to characterize this omission as a "mutual mistake”, and grounds for a reformation claim, specious.
In the absence of a contract that expressly provides otherwise, plaintiff cannot succeed in his attempt to obtain a broker’s commission unless he can demonstrate that he was the procuring cause of the lease that was eventually executed
Though it is undisputed that plaintiff informed Hannaford, in mid-1990, that defendants might have property available in Oneonta, and was present at an initial meeting between Hannaford representatives and the individual defendants on July 23, 1990, there is no evidence that his actions in any way prompted the lease negotiations, which did not begin until almost a year later. In fact plaintiff admits that he took "a wait and see approach” to the negotiations, and while his actions may not have constituted an "abandonment” (but see, Greene v Heilman, supra, at 207), it cannot be said that he "[brought] the minds of the parties to an agreement” with respect to the possibility of a lease (Gabrielli v Cornazzani,
Plaintiff’s other arguments, including those directed to his need for further discovery, have been considered and found wanting. Mikoll, J. P., Mercure, Crew III and Casey, JJ., concur. Ordered that the orders are affirmed, with costs.