next case on for argument l m m versus firefly entertainment is the court michael let me give the court the essence of the essence of this appeal as i see it to affirm this decision the court has to reach for defendants reaching for defendants pre answer is material er are dressing in force ability of the email making prehensile determination of measure of damages apropo consider forest how the district court describes the mail record page eighty the email is described as an informal e mail the district court writes this is an informal email from employee of defendant to point of however the franklin the grammatical subject of the e mail is the sole right given to the douglas elliman agent to represent the friended regarding one hundred and fifty three frankly further note the expressed intent of the e mail to be shown to the owner the point is to find this e mail inform all you have to reach for defendant more important still viewing and any other needs at one hundred and fifty three franklin of these words the court writes it does not come close to establishing the exclusive agency of the douglas elliman age now consider if you were to change the word soley with the word exclusively defendant's working exclusively with the douglas elliman agent certainly these words come close to exclusive agency i e the dictionary synonym of the word soul is exclusively to point to interpret the email as not coming close to  working soley joe we are soley we are exclusively working with you that's one possible meaning of that sentence but another possible meaning is all we're going to be doing or the things regarding not with respect not in the least in this respect remember that the complaint is pleading the circumstances of what is happening here this is a licensed real estate broker who is in the midst of showing the defendant real property and in paragraph eighteen of the complaint i think that is a record page twenty one dollars it specifically pleads the fact that the broker asked for it some kind of proof of his exclusive agency to go to the sell off so that he would have the bone a few days to convince this sell it to sell remember this is not a listed property this is conceived by the broker as a way to solve this particular buyers problem now obviously given all that context any inference favoring you shouldn't be narrowing narrowly construing such a a promise of exclusive agency and disregarding the pleading especially at the poor he answers stage there should be opportunity to put the proof to what is a legit complaint it would be different if the complaint merely said i have this e mail here and that's the sole basis of the exclusive agency that is not the nature of this complaint the complaint is facts specific and moreover i would point out to you remember that this broker created this decide to curb the point is what are all about the fact that this email says nothing about the amount of commission no problem if you look at the latest appellate division controlling authority which is lance go says pacifically the absence of sculptor ration commission amount is not a bar when foreseeability provide these promises made to a licensed real estate broker provide that you are alleging that another broker has supplanted the exclusive broker provided that of the broker has earned a commission excluding the other broker those are the exact that square the bottom line here is this but for the douglas element broker there is no transaction here and that also goes to promissory estoppel theory a liability which is and it is a fully developed condominium but one hundred and fifty three franklin is a two storey old building with an indoor garage and it's no longer in use this was some real intuitive insi generally observe loosely good morning my name store baldrige and i represent the apple ease the successful defend it's below there was one thing not mentioned in mr cole's argument which is the linchpin of what is before the court today and that is this is not a procuring cause broker case the rule real estate commissions is procuring cause and when a broker is a procuring cause certain no and then you can add that's correct ok thank you and would be sure his client was not the procuring cause there's no dispute about that and where that leaves you under a political new york law is whether there was a special contract they call it or talking about a special contract of agency and once you're in the world of special contract of exclusive agency he has to plead and prove on behalf of the broker all material terms of that special contract and to the extent a material term is missing it's just like any other contract case there is no contract in this case that e mail is alleged to be on all four corners as he says in the complaint the entire agreement the entire special contract what's missing from that e mail is judge raycroft pointed to there's no reference to compensation at all much less how you determine amount there's no a reference to duration of the agency if there was one at all there's no reference to the scope of the agency if there was one at all and there's no reference to the services that were provided allegedly or were to be provided so where he is left is with an e mail where he wanted the court below and the e mails attached to the complaint and now wants this court to read into the special contract all of the terms of a contract and then give his client a one million dollars commission you can't do that there's not a case in existence that supports the court writing the contract for him and lance go versus world zionists involves whether an otherwise sufficient brokerage agreement is on in force of all because it fails to specify the amount of commission and lance go there was duration there was sco there were services it did not reference the amount here you don't have the issue of what the amount is and determining the amount under the fixed and variable standard of cooper what you have here is nothing said in the email about compensation at all you can't put that term in and that's why landscape doesn't apply and if you look at judge firm an decision he's perfectly in line with lance go because he finds no formal agreement no mention whatsoever of what the what the scope of your ration is no mention whatsoever of any compensation much less how much that compensation would be and then another reason was occurred to us as you ask your question of judge raycroft about how you interpret soli you didn't have that issue at all lance go as to whether it modified the preceding language or the subsequent language so landscape was is easily easily dealt with now what do they say they say in response at all these terms we've covered that parkway vs mode else dismissed even when the special contract said we will pay a commission at a negotiated rate in the future it was still dismissed with prejudice and parkway and that actually referenced a payment arced as a reference at all much less a future act to deal with that payment cooper square cooper square dismissed it says there must be a definite statement as to compensation for a special contract again we have no statement in this email which they allege as the sole basis for the contract with no no reference to price or compensation at all and supplying the missing terms there has to be a fixed  invariable standard to determine the amount of compensation assuming there is a compensation requirement st place which we don't have year and that fixed and variable standard doesn't exist as the core pointed out because element had said determining the six percent that they claim they were entitled to depends on subjective assessments of what the neighborhood was like and what the purchaser was like with a high hand in other words was it a high end purchase or was it a high end neighborhood opportunities to men including one in writing by judge firman they declined both opportunities and even if they were allowed to i'm mad and add like they tried to on appeal for the st time at these cause i contract claims that would be futile because i caused a contract claim only applies under the procuring cause rule that's far island in other words once you have a procuring cause then you can make cause a contract the agreement does not contain the material terms such as duration duties or the policy manner in which the fee was computed however we have previously recognize an agreement like their stupidity in forcible moreover glanced the broker only spent twenty five minutes with the broker in this case after that supplant in a more than another broker and the court said the fact that it was twenty five minutes makes no difference to enforceability the garden a case that modellers sports that counsel pointed out if you read that case what you'll find is the reason the exclusive agency was not in force there because they had a deal worked for god to one tenet who did not by the court said in any case you don't have an exclusive for everything just that one tenet it didn't occur because that contingency did not occur no exclusive agency with respect to counsel the terms are sufficient with the facts pled to show an exclusive agency moreover there is promissory estoppel the broker should not be kicked  he should be permitted to give proof on damages hytner says specifically nd circuit says in a case like this you have the right to offer expert proof of what is a customary  real estate brokerage commission for thirty one of the pattern jury instructions specifically states if the parties did not agree to waive commission amount you may consider a reasonable amount and you may customer you must find for defendant not that you may receive proof of reasonable brokerage services or you may consider expert testimony the laureus in opposite to the a pelleas position the broker should have his opportunity to prove his case thank you thank you thank you mr call and comment since there were something new it's just a sentence the pattern jury instruction refers to is a procuring cause instruction not a special contract instruction thank you thank you both i will reserve decision in this case