as follows: I dissent and would affirm because the agreement is ambiguous. The parties’ financial and restructuring advisory services contract, dated June 26, 2009, expired 60 days after its signing, but plaintiff remained entitled to a fee for six months following termination of the agreement if defendants closed “with any party who [plaintiff] has introduced as set forth on Exhibit A (as amended) during the term of this Agreement.” By defendants’ own admission, there was no Exhibit A to the contract. This omission leaves the term “any party” undefined, rendering the above quoted language ambiguous and permitting consideration of extrinsic evidence to determine its meaning (see Chimart Assoc. v Paul, 66 NY2d 570, 572-573 [1986]; see also 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002] [dismissal warranted under CPLR 3211 (a) (1) only if the documentary evidence conclusively establishes a defense to the asserted claim as a matter of law]).
Moreover, on August 20, 2009, the parties extended their agreement for an additional 30 days via e-mail. This e-mail extension was without any specific time frame for closing, but provided that plaintiff was to receive payment “on all amounts that Amalgamated lends to acquire the Astoria note.” In addition, plaintiff was entitled to a commission on certain “forgiveness of principal indebtness” from Amalgamated.
Defendants assert that the parties intended plaintiff to receive a fee for introducing only new sources of financing and note that the transaction for which plaintiff seeks to recover a fee involved a lender that was not a new source. However, the word “new” does not appear in the contract and defendants submit no extrinsic evidence tending to show that “new” was part of the meaning of the words “any party.”
The majority believes that the term “any party who [plaintiff] has introduced” cannot refer to Astoria or Amalgamated because defendant already had a financial relationship with these entities in connection with the same underlying construction project for which defendants were seeking additional financing. However, one should not ignore that the raison d’etre for this agreement was “to provide financial and restructuring advisory services ... to assist with raising additional debt and or equity capital.” Given that the agreement does not use the word “new,” a party whom plaintiff introduces could mean a *495party that plaintiff introduces to any additional financing arrangement, even if defendants had a prior financial relationship with that party. And, as discussed, the e-mail extending the agreement tends to show that the parties intended for plaintiff to receive payment for certain types of financing from Amalgamated (see generally 511 W. 232nd Owners Corp., 98 NY2d at 152 [on a motion to dismiss, complaint’s allegations and any submissions in opposition accepted as true and accorded benefit of every possible favorable inference]; Whitebox Convertible Arbitrage Partners, L.P. v Fairfax Fin. Holdings, Ltd., 73 AD3d 448 [2010] [affirming denial of motion to dismiss because unclear language rendered agreement susceptible of two meanings]).