| Barns & Farms Realty, LLC v Novelli |
| 2011 NY Slip Op 01608 [82 AD3d 689] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Barns & Farms Realty, LLC, Appellant, v James Novelli etal., Respondents. |
—[*1]
In an action, inter alia, to recover damages for breach of contract and fraud, the plaintiffappeals from so much of an order of the Supreme Court, Dutchess County (Pagones, J.), datedDecember 21, 2009, as denied its motion for leave to enter a judgment against the defendantsJames Novelli and Michele Bouchard upon their default in appearing or answering the complaintand granted that branch of the motion of the defendants Kinsey Haight Hill, LLC, Clinton I.Smullyan, Jr., and Catherine E. Kinsey which was for summary judgment dismissing thecomplaint insofar as asserted against them. Presiding Justice Prudenti has been substituted for thelate Justice Fisher (see 22 NYCRR 670.1 [c]).
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced the instant action, inter alia, to recover a real estate broker'scommission. The plaintiff alleged that the defendants James Novelli and Michele Bouchard hadentered into agreements which gave the plaintiff the exclusive right to sell a certain parcel of realproperty during a one-year period. The plaintiff alleged that during this one-year period Novelliand Bouchard sold the real property to the defendant Kinsey Haight Hill, LLC (hereinafterKHH), and failed to pay the plaintiff a commission. The first two causes of action, allegingbreach of contract and fraud, respectively, were asserted against Novelli and Bouchard. The thirdcause of action, alleging tortious interference with an existing contractual relationship, wasasserted against KHH, Clinton I. Smullyan, Jr., who, apparently acting on behalf of KHH,negotiated and agreed to the purchase of the real property, and Smullyan's wife, Catherine E.Kinsey. The fourth cause of action, alleging "fraudulent conspiracy," was asserted against all ofthe defendants.
The plaintiff moved for leave to enter a judgment against Novelli and Bouchard upon theirdefault in appearing or answering the complaint. KHH, Smullyan, and Kinsey moved, inter alia,for summary judgment dismissing the complaint insofar as asserted against them. The SupremeCourt, inter alia, denied the plaintiff's motion and granted the motion of KHH, Smullyan, andKinsey.[*2]
Under the particular circumstances of this case, theSupreme Court properly declined to enter a default judgment against Novelli and Bouchard(see Parrotta v Wolgin, 245 AD2d 872, 873 [1997]; Meyer v A & B Am., 160AD2d 688 [1990]; General Elec. Credit Corp. v Zemrus, 115 AD2d 953 [1985];Cohen v Ryan, 34 AD2d 789, 790 [1970]).
"[T]o succeed on a cause of action alleging tortious interference with an existing contract, theplaintiff must establish: (1) the existence of a valid contract between it and a third party, (2) thedefendants' knowledge of that contract, (3) the defendants' intentional procurement of the thirdparty's breach of that contract without justification, and (4) damages" (Pink v Half Moon Coop. Apts., S., Inc.,68 AD3d 739, 740 [2009]; see Lama Holding Co. v Smith Barney, 88 NY2d 413,424 [1996]; Foster v Churchill, 87 NY2d 744, 749-750 [1996]). Here, the evidenceproffered by KHH, Smullyan, and Kinsey, including the affidavits of Smullyan, Kinsey, and anattorney who had represented KHH, established their prima facie entitlement to judgment as amatter of law (see Schuckman Realty v Cosentino, 294 AD2d 484 [2002]). In response,the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properlyawarded KHH, Smullyan, and Kinsey summary judgment dismissing the third cause of action.
New York does not recognize civil conspiracy to commit a tort as an independent cause ofaction (see Hebrew Inst. for Deaf &Exceptional Children v Kahana, 57 AD3d 734, 735 [2008]; Salvatore v Kumar, 45 AD3d 560,563 [2007]; Sokol v Addison, 293 AD2d 600, 601 [2002]). Accordingly, a cause ofaction alleging conspiracy to commit a tort stands or falls with the underlying tort (seeHebrew Inst. for Deaf & Exceptional Children v Kahana, 57 AD3d at 735; Salvatore vKumar, 45 AD3d at 563-564; Sokol v Addison, 293 AD2d at 601). Here, since noseparate cause of action alleging fraud was asserted against KHH, Smullyan, and Kinsey, thecause of action alleging fraudulent conspiracy was properly dismissed. To the extent the fourthcause of action may be construed to assert a cause of action alleging fraud, it was properlydismissed insofar as asserted against KHH, Smullyan, and Kinsey, since it did not allege theessential elements of a fraud claim (see generally Barclay Arms v Barclay Arms Assoc.,74 NY2d 644, 646-647 [1989]).
The plaintiff's remaining contentions are without merit.
We decline the request of KHH, Smullyan, and Kinsey for the imposition of a sanctionagainst the plaintiff based upon allegedly frivolous conduct on this appeal (see 22NYCRR 130-1.1 [a], [c]). Prudenti, P.J., Mastro, Roman and Sgroi, JJ., concur.