Rusciano Realty Service Ltd. v. Skate Realty Corp.

In an action to recover damages based on a real estate brokerage commission, defendant Cross & Brown Company appeals from so much of an order of the Supreme Court, Westchester County (Wood, J.), entered February 11, 1985, as denied that branch of its motion as sought summary judgment dismissing the second and third causes of action of the complaint as against it.

Order reversed, insofar as appealed from, with costs, that branch of appellant’s motion as sought summary judgment dismissing the second and third causes of action of the complaint as against it granted, and action as against the remaining defendants severed.

On the record before us, plaintiff has failed to show the existence of an enforceable contract between the prospective purchaser and defendant sellers. The correspondence between appellant and plaintiff with regard to appellant’s finding a prospective buyer specifically states that the offer is subject to preparation of a formal contract by the sellers’ attorney and approval by buyer’s attorney. Absent proof of the existence of a firm offer to purchase, plaintiff has failed to show intentional interference by appellant with its exclusive brokerage agreement. Moreover, in view of appellant’s unrebutted assertion that at no time either before or after the expiration of plaintiff’s exclusive brokerage agreement with defendant sellers was the subject property sold or a commission paid to anyone, plaintiff has failed to establish damages. Inasmuch as the requisite elements of a cause of action for tortious interference with contract have not been set forth (see, Poughkeepsie Sav. Bank v Sloane Mfg. Co., 84 AD2d 212, 217), Special Term erred in failing to grant appellant’s motion in its entirety dismissing all causes of action asserted against it. Mangano, J. P., Bracken, Weinstein, Lawrence and Hooper, JJ., concur.