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Susan D. Fine Enterprises, LLC v. Steele

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 16, 2009

SUSAN D. FINE ENTERPRISES, LLC, PLAINTIFF-RESPONDENT,
v.
NORMAN STEELE, ET AL., DEFENDANTS,
VINCENT POLIMENI, DEFENDANT-APPELLANT.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered October 9, 2008, which, insofar as appealed from in this action to recover a real estate broker's commission, denied defendant-appellant's cross motion for summary judgment dismissing the complaint as against him, unanimously reversed, on the law, without costs, and the cross motion granted. The Clerk is directed to enter judgment accordingly.

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.

Gonzalez, P.J., Nardelli, Catterson, Moskowitz, Renwick, JJ.

101160/08

Appellant made out a prima facie showing of entitlement to judgment as a matter of law. He established that no triable issue of fact exists as to whether he tortiously interfered with plaintiff's alleged agreement with co-defendant Norman Steele to serve as the co-broker for the sale of the apartment at issue. In any event, we note that the elements of tortious interference with contract were not sufficiently pleaded in the complaint with respect to appellant (see generally Lama Holding Co. v Smith Barney, 88 NY2d 413, 424 [1996]). There was no allegation that appellant intentionally procured the co-broker's alleged breach of the contract to pay a commission to plaintiff.

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

20090416

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