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Rosenfeld v. Kadmon Holdings, LLC - 2017 N.Y. Misc. LEXIS 982, 2017 NY Slip Op 30547(U) (Sup. Ct.)


Dismissal based on documentary evidence may be granted "where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law,"


Plaintiff Dr. Steven Rosenfeld sought recovery for breach of contract, and, alternatively, in quantum merit. This action arises from an agreement the parties allegedly entered into in which Rosefeld and defendant Joel Schreiber agreed to raise approximately $50 million in order for defendants Dr. Samuel Waksal and Kadmon Capital, LLC to acquire certain pharmaceutical companies, reorganize them, and take them public. If they successfully raised these funds, Rosenfeld and Schreiber were to share a six percent "equity package." Plaintiff alleged that he and defendant Schreiber introduced defendant Waksal to Colbeck Capital Management, LLC which provided defendants with over $250 million, but Rosenfeld never received his six percent equity interest. Defendants Kadmon Holdings, LLC, Kadmon I, Kadmon II, LLC, Kadmon Capital, LLC, Kadmon Corporation, LLC, Waksal moved for an order, pursuant to N.Y. C.P.L.R. 3211(a)(1)(5), and (7), to dismiss the third amended complaint.


Was the plaintiff entitled to recover for breach of agreement?




The language in the Agreement "[y]ou will have an exclusive arrangement for this project") is not the "affirmative and unequivocal" statement required to establish that only plaintiff and Schreiber could raise capital for Kadmon Capital, or that plaintiff and Schreiber would be entitled to a commission for funds raised by it, and does not prohibit Kadmon Capital from securing funds from third parties. Thus, even if plaintiff had an exclusive right, the transaction, that is, the acquisition specified in the Agreement, did not occur. Additionally, plaintiff never alleges what "the period of the Agreement" was, and how the alleged efforts of others fell within that period. Further, contrary to plaintiff's contentions, the Agreement does not provide for an exclusive right to sell. Rather, at best, it provides for an exclusive agency, which merely precludes an owner from retaining another broker, but does not restrict the owner's inherent right to sell its own property.

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