12 Mass. App. Ct. 911 | Mass. App. Ct. | 1981
Westminster Associates, a limited partnership organized under Rhode Island law (the partnership), entered into a letter agreement on September 27, 1972, with Corporate Property Investors (CPI), a trust organized under New York law, whereby CPI would, at the partnership’s option, purchase from the partnership the land under a twenty-two story office building in Providence, which the partnership was in the process of completing. When the partnership exercised its “put” in 1975, CPI declined to perform on the grounds that the partnership had not satisfied certain conditions of sale which appeared in the agreement, notably the achievement of a stipulated rent quota and the furnishing of certain financial information by the plaintiff in this action, First Hartford Realty Corporation (FHRC), a Delaware corporation. FHRC was the sole general partner of the partnership. The financial condition of FHRC was of interest to CPI because FHRC, as part of the deal structured by the 1972 agreement, was to guarantee the performance of a forty-five year leaseback by CPI to the partnership and a loan which CPI was to make to FHRC if the net income of the building had not reached a specified amount prior to the date of closing. Certain officers and employees of CPI were also to buy limited partner interests in the partnership.
FHRC, in its complaint, alleges that CPI repudiated its agreement with Westminster and implies the meretriciousness of the reasons advanced by CPI for failing to perform. The theories of recovery which the complaint articulates are breach of contract, a G. L. c. 93A claim of unfair business practices, and, on an imaginative reading of the complaint, claims under New York law of prima facie tort. During the course of a deposition, the defendant CPI discovered that the plaintiff FHRC had, as of September 30, 1976, i.e., eleven months after commencement of the action, resigned as the sole general partner of the partnership. CPI moved for summary judgment (Mass.R.Civ.P. 56, 365 Mass. 824 [1974]) on the ground that, on undisputed facts, FHRC had no standing to maintain the action. That motion was allowed. The parties agree that, in accordance with a provision in the September 27, 1972 agreement, the law of the State of New York is applicable.
1. As the sole general partner of Westminster Associates, FHRC was the appropriate plaintiff when the action began. Gordon v. Medford, 331 Mass. 119, 124 (1954). Roberts-Haverhill Associates v. City Council of Haverhill, 2 Mass. App. Ct. 715, 721 (1974). Mass.R.Civ.P. 17(a), 365 Mass. 763 (1974). Smith & Zobel, Rules Practice § 17.8 n.30 (1980 Supp.). Once FHRC withdrew from the partnership, its ability to maintain the action, in the absence of an assignment of the claim by the partnership to FHRC (that no such assignment occurred is uncontroverted), depended on establishing its status as a third-party beneficiary. Third-party beneficiary rights have been recognized in New York since the leading case of Lawrence v. Fox, 20 N.Y. 268 (1859). But in order to invoke
2. On appeal, FHRC made a well advised decision to abandon its c. 93A claim (the exemption of the transaction from the coverage of G. L. c. 93A under § 3[1][¿>] could not, on the record, be disputed), but still urges that the c. 93A count should be read as stating claims, cognizable under New York law, of tortious breach of contract and prima facie tort. To the extent that New York recognizes tort liability arising out of a breach of contract, that liability is indistinguishable in the context of this case from the doctrine of prima facie tort. See 59 N.Y. Jur., Torts § 17, at 127-128 (1968). Assuming, without deciding, that the latter theory was
Judgment affirmed.