Slusky v Prudential Douglas Elliman LLC

[*1] Slusky v Prudential Douglas Elliman LLC 2012 NY Slip Op 52355(U) Decided on December 24, 2012 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 24, 2012
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570803/12.

Ronald D. Slusky, Plaintiff-Appellant,

against

Prudential Douglas Elliman LLC, d/b/a Prudential Douglas Elliman Real Estate, Defendant-Cross-Appellant.

Plaintiff appeals from those portions of an order of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered April 25, 2012, which denied his motion for summary judgment and for Rule 130 sanctions, and granted defendant's cross motion for summary judgment dismissing the complaint. Defendant cross-appeals from that portion of the aforesaid order which granted plaintiff's motion for summary judgment dismissing the counterclaim.

Per Curiam.

Order (Robert R. Reed, J.), entered April 25, 2012, affirmed, with $10 costs.

We sustain the summary judgment dismissal of the complaint in the main action. The lone cause of action stated in the complaint, alleging that defendant tortiously interfered with plaintiff's contract to purchase a condominium apartment, was not viable, since defendant induced no breach of the underlying contract (see NBT Bancorp v Fleet/Norstar Fin. Group, 87 NY2d 614, 620—621 [1996]; Romanello v Intesa Sanpaolo S.p.A., 97 AD3d 449, 455 [2012]). Nor is there a basis to grant plaintiff's application for Rule 130 sanctions, since defendant's filing of its counterclaim, although meritless, was not shown to have been "undertaken primarily to delay or prolong the resolution of the litigation" (22 NYCRR 130-1.1[c][2]).

Turning to defendant's cross appeal, we agree that its counterclaim was properly dismissed, in the absence of any showing that plaintiff was unjustly enriched at the expense of defendant, the seller's broker (see Old Republic Nat. Title Ins. Co. v Luft, 52 AD3d 491 [2008]). Defendant neither performed brokerage services at plaintiff's behest, nor was the relationship between the parties one that could have caused reliance or inducement on defendant's part (see Georgia Malone & Co., Inc. v Rieder, 19 NY3d 511, 516-519 [2012]; Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182-183 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: December 24, 2012