Summary
reversing denial of summary judgment dismissing claim of tortious interference with contract where defendant had no knowledge of contract between plaintiff and third party
Summary of this case from In re Houbigant, Inc.Opinion
January 28, 1991
Appeal from the Supreme Court, Suffolk County (Namm, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as it is asserted against the defendants Samuel K. Alfstad and Elizabeth Cameron Alfstad, and the action against the remaining defendant is severed.
In its complaint, the plaintiff corporation alleges that it was instrumental in procuring the appellants Samuel K. Alfstad and Elizabeth Cameron Alfstad as purchasers of a home to be constructed by the defendant James D. Gibbs in East Hampton, New York. The plaintiff further alleges that the defendant Gibbs has in fact made a contract with the appellants pursuant to which the latter are to pay $202,000, together with $25,000 in "extras", for the construction of the home.
In its first cause of action, the plaintiff claims that pursuant to its brokerage agreement with the defendant Gibbs, it is entitled to a commission of $13,620. In its second cause of action, the plaintiff seeks the same relief based on principles of quantum meruit. In its third cause of action, the plaintiff alleges that the appellants "conspired" with the defendant Gibbs "to deprive [it] of the commission due and owing to [it] upon the sale of the subject home". In its fourth cause of action, the plaintiff alleges that the appellants intentionally induced the defendant Gibbs to violate the terms of the brokerage agreement.
Contrary to the conclusion reached by the Supreme Court, we find that the affidavits submitted by the appellants in support of their motion for summary judgment are sufficient to warrant judgment in their favor as a matter of law, and that the plaintiff has failed to submit evidentiary material sufficient to establish the existence of a material issue of fact.
The third cause of action was properly dismissed since New York does not recognize an independent tort to recover damages for civil conspiracy and the plaintiff failed to set forth any specific acts on the appellants' part which make out participation by them in an actionable tort (see, Hickey v Travelers Ins. Co., 158 A.D.2d 112, 118; Arcy Paint Co. v Resnick, 134 A.D.2d 392, 393; Ginsburg v Redmond Finishing Co., 75 A.D.2d 505, 506; Cuker Indus. v Crow Constr. Co., 6 A.D.2d 415, 417). With respect to the fourth cause of action, we find that the evidence in the record establishes conclusively that the appellants had no knowledge of the brokerage agreement between the plaintiff and Gibbs until subsequent to their contract with Gibbs. The broker who represented the plaintiff specifically testified that during the negotiations she did not inform Ms. Alfstad of the plaintiff's contractual relationship with Gibbs. Unlike the case of a typical sale of an existing home, the appellants had no basis upon which to infer the existence of the brokerage agreement between the plaintiff corporation and the codefendant whom the appellants hired as their builder. Under these circumstances, as a matter of law, the appellants cannot be liable to the plaintiff for inducing a breach of that agreement (see, Israel v Wood Dolson Co., 1 N.Y.2d 116, 120; Giannelli v St. Vincent's Hosp. Med. Center, 160 A.D.2d 227; Kaminski v United Parcel Serv., 120 A.D.2d 409; S S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 108 A.D.2d 351). Mangano, P.J., Bracken, Lawrence and Ritter, JJ., concur.