Matter of Fitzsimons v. Dep't of State

28 N.Y.2d 979 (1971)

In the Matter of John F. Fitzsimons, Appellant, v. Department of State, Respondent.

Court of Appeals of the State of New York.

Argued April 21, 1971.

Decided May 26, 1971.

John F. Fitzsimons, in person, and Joseph F. Clunan for John F. Fitzsimons, appellant.

Louis J. Lefkowitz, Attorney-General (Philip Weinberg, Samuel A. Hirshowitz and Thomas Riccobono of counsel), for respondent.

Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL and GIBSON. Judge JASEN dissents and votes to affirm on the opinion at the Appellate Division.

Order reversed, without costs, and the determination of respondent annulled in the following memorandum: Petitioner procured the eventual buyer prior to the inception of the exclusive agreement with the complaining broker and consummated the sale after its expiration. In the interim, during the exclusive period, there was no proof of actual interference with any prospective purchaser obtained by complainant and the proof is insubstantial with respect to his conduct during that period to give rise to a charge of "untrustworthiness" under section 441-c of the Real Property Law (Matter of Chiano v. Lomenzo, 26 A D 2d 469).