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No Tortious Interference Without Breach of Contract, Says NY Court


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1/1/2016
Jonathan Cooper
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Sometimes, you read a decision, and from the court's recitation of the facts, it's appears that the plaintiff may have been wronged. And in some cases, like in Marzullo v. Beekman Campanille, Inc., New York law doesn't provide any remedy for the problem.

In this case, the plaintiff was hired as a real estate broker for two apartments in the defendant's cooperative building. The plaintiff's commission on the sale was to come due at the closing on the apartments, and the sale was expressly contingent on Beekman's approval of the sale.

Beekman had a long-standing "no pets" rule; the buyer explicitly noted in its contract to purchase the apartments that he had a pet that he intended to bring with him. Here's where it gets tricky.

According to the plaintiff, Beekman issued a revised proposed lease to the buyer that would have allowed him to keep his pet, and then promptly reneged, and withdrew it. At that point the buyer backed out of the deal, costing the plaintiff her commission, and the seller was compelled (albeit by court order) to return the buyer's deposit that had been placed into escrow.

So the plaintiff real estate broker sued the building, contending that the defendant had tortiously interfered with their brokerage contract by rendering it impossible to complete the sale.

In dismissing the case at its very outset, the Court made clear that this allegation wasn't enough to prevail on a tortious interference claim under New York law, because in accordance with Fonar Corp. v. Magnetic Resonance Plus, Inc., 957 F. Supp. 477, 481 (S.D.N.Y. 1997), "impossibility of performance does not state a claim for tortious interference under New York law."

For additional information on this topic, please see "Why Mere 'Interference' Isn't Enough for Tortious Interference In NY."



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