63 A.D.2d 880 | N.Y. App. Div. | 1978
Order, Supreme Court, New York County, entered October 6, 1977, denying defendant 400 Park Avenue’s motion to dismiss for failure to state a cause of action under CPLR 3211 (subd [a], par 7), is reversed, on the law, without costs and disbursements, and said motion is granted, the complaint dismissed and the action severed as to defendant-appellant. Defendant Irving Trust Co. was a tenant in a building owned by defendant 400 Park Avenue under a lease which permitted Irving to assign, without the landlord’s permission, or sublet to a well-established organization (insurance company, bank, trust company, title company) which had at the time of subletting a combined capital and surplus of no less than $50,000,000. Irving told plaintiff, a real estate broker, of its plans to sublet and plaintiff advised that Banco di Napoli was interested, and negotiations between the two principals began. 400 Park was approached by plaintiff about a direct lease to Banco, but the discussions were not successful. 400 Park was dissatisfied with the possible Irving-Banco lease and stated that it wanted Security National Bank in the Irving space. 400 Park then began a lawsuit against Irving and Banco to enjoin the sublease and asked for damages and declaratory relief. The suit was based on an alleged agreement wherein Irving agreed to cancel the Irving-400 Park lease, when actually Irving could sublet without the consent of 400 Park. Banco di Napoli eventually backed away from the agreement and 400 Park withdrew its suit. Special Term found a tortious interference with a brokerage agreement because 400 Park knew of the brokerage agreement; began an action based upon a fiction; intended to prevent a lease so it could get a more favorable lease with another; and that the plaintiff would have been entitled to commission but for 400’s unlawful conduct. Interference with precontractual relations is actionable when a contract would have been entered into had it not been for the malicious conduct of a third person. It is sufficient to show that negotiations were reasonably certain to result in a contract advantageous to the plaintiff. (45 AM Jur 2d, Interference, §40.) The seminal case of Union Car Adv. Co. v Collier (263 NY 386) gives as the general rule that an action will lie for interference in favor of one who would have received a contract but for the malicious, fraudulent, and deceitful acts of a third party. Benton v Kennedy-Van Saun Mfg. & Eng. Corp. (2 AD2d 27, 29) spells out interference citing Campbell v Gates (236 NY 457, 460), as " 'It is a wrongful act, done intentionally, without just cause or excuse, and from this a malicious motive is to be inferred. This does not necessarily mean actual malice or ill-will * * * The action is predicated not on the intent to injure, but on the intentional interference, without justification, with A’s contractual rights, with knowledge thereof. It is a legal wrong and one who commits it, if damage be sustained, must answer therefor.’ [citing Campbell] Self-interest may be the legal justification which negatives intent to injure, but of course it cannot afford legal justification for the intent to interfere with a contract by unlawful means.” It is undisputed that a lawsuit may be the basis for a claim of interference (Muller v Star
The existence of a valid contract also encompasses negotiations which fell short of consummation solely due to tortious interference (Williams & Co. v Tuttle & Co., 6 AD2d 302, 304, mot for lv to app den 5 NY2d 710).