| Harris v Seward Park Hous. Corp. |
| 2010 NY Slip Op 08861 [79 AD3d 425] |
| December 2, 2010 |
| Appellate Division, First Department |
| Thorner Harris, Appellant, v Seward Park Housing Corporationet al., Respondents. |
—[*1] Fiedelman & McGaw, Jericho (James K. O'Sullivan of counsel), for respondents.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered December 14, 2009,which, to the extent it denied renewal and adhered on reargument to so much of a prior ruling asgranted defendants' motion to dismiss the first cause of action, unanimously affirmed insofar asappealable, and the appeal is otherwise dismissed, without costs.
Plaintiff did not appeal the order of June 19, 2009, which dismissed his complaint, nor did he makea motion during the statutory 30 days for such relief (CPLR 2221 [d]). Despite recognizing theuntimeliness of the motion, the court granted reargument with regard to the first cause of action forbreach of contract, relying on Liss v Trans Auto Sys. (68 NY2d 15, 20 [1986]), and adheredto its prior ruling. In Liss, the Court of Appeals held that "regardless of statutory time limitsconcerning motions to reargue, every court retains continuing jurisdiction to reconsider its priorinterlocutory orders during the pendency of the action." Nevertheless, since the underlying order of June19 had finally determined this action by dismissing the complaint, the matter was no longer pending andthe court lacked the authority to consider the untimely request for reargument (see Johnson vIncorporated Vil. of Freeport, 303 AD2d 640 [2003]; Sainphor v Hurtt, 302 AD2d 511[2003]), thus requiring dismissal of the present appeal to that extent.
Even were we to consider the merits of plaintiff's challenge to the dismissal of his claim for breachof contract, it is clear that he has no such viable cause of action. The elements of such a claim includethe existence of a contract, the plaintiff's performance thereunder, the defendant's breach thereof, andresulting damages (see Morris v 702 E. FifthSt. HDFC, 46 AD3d 478 [2007]). There never was any enforceable agreement betweenthese parties, but merely an application by plaintiff to purchase one of the apartments in defendantcooperative, which certainly had a right to insist—as a condition precedent to thecontract—on the approval of the application by its board of directors. Defendant cooperativehad a legitimate business interest in procuring the highest possible price for the sale of its units (see Singh v Turtle Bay Towers Corp., 74AD3d 568 [2010]), and plaintiff, as a mere contract vendee of shares rather than a shareholder,did not have a cause of action for breach of contract against the cooperative (see 85 Fifth Ave. 4th Floor, LLC v I.A. Selig,LLC, 45 AD3d 349 [2007]; Aridas v 244 E. 60th St. Owners Corp., 292 AD2d325 [2002]).[*2]
Finally, the motion court correctly determined that plaintiff wasnot entitled to renewal. (See CPLR 2221 [e].) Concur—Tom, J.P., Friedman,DeGrasse, Freedman and Manzanet-Daniels, JJ.