Alavian v Zane

Alavian v Zane 2012 NY Slip Op 08464 Decided on December 11, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 11, 2012
Andrias, J.P., Friedman, DeGrasse, Manzanet-Daniels, Gische, JJ.
8785 103835/08

[*1]Ahmad Alavian, et al., Plaintiffs-Respondents,

v

Ted Zane, Defendant-Appellant, Arnold Ross, Defendant.




Ateshoglou & Aiello, P.C., New York (Steven D. Ateshoglou
of counsel), for appellant.
Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of
counsel), for respondents.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 5, 2012, which, insofar as appealed, denied defendant Ted Zane's cross-motion for summary judgment dismissing the complaint against him, unanimously reversed, on the law, without costs, the cross-motion granted, and the complaint dismissed as against Zane.

Plaintiffs assert that, for a period of over four years, defendants deliberately interfered with the closing of executed contracts of sale of two cooperative apartments. It is undisputed, however, that the contracts satisfactorily closed in August 2011. Delay, even "substantial delay," in the closing of a real estate transaction does not constitute breach of the contract of sale (Ulysses I & Co. v Feldstein, 75 AD3d 990, 992 [3d Dept], lv dismissed in part, denied in part, 15 NY3d 944 [2010]). Accordingly, since there was no "actual breach" of the contracts of sale, plaintiffs may not maintain a claim for tortious interference with contract against Zane (see NBT Bancorp Inc. v Fleet/Norstar Fin. Group, Inc., 87 NY2d 614, 620-21 [1996]; Ulysses, 75 AD3d at 991-92).

We note that plaintiffs' only other claim against Zane, for injunctive relief in the form of an order preventing him from interference with the closing, was mooted by the fact that the closing has occurred.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 11, 2012 [*2]

CLERK