Lansco Corp. v Strike Holdings LLC

Lansco Corp. v Strike Holdings LLC 2011 NY Slip Op 08794 Decided on December 6, 2011 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 6, 2011
Andrias, J.P., Sweeny, Acosta, Freedman, Manzanet-Daniels, JJ.
5856 601089/10

[*1]The Lansco Corporation, Plaintiff-Respondent,

v

Strike Holdings LLC, Defendant, GFI Realty Services., Inc., Defendant-Appellant.




Stahl & Zelmanovitz, New York (Joseph Zelmanovitz of
counsel), for appellant.
Law Office of Lionel A. Barasch, New York (Lionel A. Barasch
of counsel), for respondent.

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered January 27, 2011, insofar as it granted plaintiff's motion for leave to file a second amended complaint, unanimously modified, on the law, to deny the motion as to the sixth cause of action, and otherwise affirmed, without costs, and the appeal from said order, insofar as it denied defendant GFI's cross motion pursuant to CPLR 3211(a)(7) to dismiss the claims asserted against it in the first amended complaint, unanimoulsy dismissed, without costs, as academic.

GFI's motion to dismiss was rendered academic by the grant of plaintiff's motion to amend (see Thompson v Cooper, 24 AD3d 203, 205 [2005]).

The third cause of action states viable claims against GFI. Plaintiff alleges that GFI and defendant Strike conspired to interfere with its right to be the real estate broker for a lease agreement between Strike and the nonparty premises owner. "[C]onspiracy as an independent tort is not recognized in New York" (Loeb Partners Realty v Sears Assoc., 288 AD2d 110, 111 [2001]). However, plaintiff states a cause of action for tortious interference with contract (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 424 [1996]). Plaintiff alleges that GFI tortiously interfered with its alleged co-brokerage agreement with nonparty Robert K. Futterman and Associates, LLC (RKF), and with Strike's alleged promise that it would receive a commission (see Edward S. Gordon Co. v Tucker Anthony & R.L. Day, 162 AD2d 319 [1990]). Plaintiff adequately alleges but-for causation (see Williams & Co. v Collins Tuttle & Co., 6 AD2d 302, 307-310 [1958], lv denied 5 NY2d 710 [1959]).

The fourth cause of action states a claim against GFI for tortious interference with business relations, specifically plaintiff's relationships with RKF and Strike (see Amaranth LLC v J.P. Morgan Chase & Co., 71 AD3d 40, 47 [2009], lv dismissed in part, denied in part 14 NY3d 736 [2010]).

The fifth and seventh causes of action also state claims against GFI. Plaintiff alleges that GFI is liable for real estate brokerage commissions that plaintiff should receive or should have received but for GFI's wrongdoing. If the tortious interference claims are proven, then GFI may [*2]well be liable for damages in the amount of the commissions that plaintiff lost.

However, leave to amend is denied as to the sixth cause of action, brought pursuant to Real Property Law § 442-e(3), to recover the commission paid to GFI, an allegedly unlicensed real estate broker. Plaintiff did not pay the commission and accordingly is not a "person aggrieved" under the statute (see e.g. 2 Park Ave. Assoc. v Cross & Brown Co., 43 AD2d 37, 39-40 [1974], affd 36 NY2d 286 [1975]).

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

ENTERED: DECEMBER 6, 2011

CLERK