| Dune Deck Owners Corp. v Liggett |
| 2011 NY Slip Op 05656 [85 AD3d 1093] |
| June 28, 2011 |
| Appellate Division, Second Department |
| Dune Deck Owners Corp., Respondent, v John P. Liggett,Appellant, et al., Defendants. |
—[*1] Barbara A. Rasmussen, Westhampton Beach, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of contract and fraudulentmisrepresentation, the defendant John P. Liggett appeals from (1) an order of the Supreme Court,Suffolk County (Weber, J.), dated July 7, 2009, which granted his motion to dismiss thecomplaint, inter alia, pursuant to CPLR 3211 (a) (7), only to the extent of dismissing thecomplaint as premature, without awarding costs or disbursements in accordance with CPLR8101, 8201, and 8301 (a), and (2) a judgment of the same court entered August 12, 2009, which,upon the order, is in favor of him and against the plaintiff dismissing the complaint only to theextent that it was premature, and failed to award him costs or disbursements in accordance withCPLR 8101, 8201, and 8301 (a).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is modified, on the law, (1) by deleting the provision thereofdismissing the complaint insofar as asserted against the defendant John P. Liggett as premature,and substituting therefor provisions dismissing the cause of action to recover damages for breachof contract insofar as asserted against that defendant as premature, and unconditionallydismissing the causes of action to recover damages for fraudulent misrepresentation, tortiousinterference with contract, and conspiracy, and for an award of an attorney's fee, insofar asasserted against that defendant, and (2) by adding a provision thereto awarding costs anddisbursements in an action to the defendant John P. Liggett in accordance with CPLR 8101,8201, and 8301 (a); as so modified, the judgment is affirmed, with costs to the defendant John P.Liggett payable by the plaintiff, those branches of the motion of the defendant John P. Liggettwhich were pursuant to CPLR 3211 (a) (7) to unconditionally dismiss the causes of action torecover damages for fraudulent misrepresentation, tortious interference with contract, andconspiracy, and for an award of an attorney's fee insofar as asserted against him are granted, theorder is modified accordingly, and the matter is remitted to the Supreme Court, Suffolk County,for the entry of an appropriate amended judgment.
The appeal from the order must be dismissed because the right of direct appeal therefromterminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241,248 [1976]). The issues raised on the appeal from the order are brought up for review and havebeen [*2]considered on the appeal from the judgment (seeCPLR 5501 [a] [1]).
This action arises from the failure to proceed to closing in connection with the purchase andsale of certain real property (hereinafter the property), with respect to which the defendant JohnP. Liggett (hereinafter the defendant) was the successful bidder at a judicial auction sale. Thedefendant moved, inter alia, pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar asasserted against him. The Supreme Court granted the motion only to the extent of dismissing thecomplaint as premature, reasoning that the plaintiff had not yet suffered ascertainable damages asthe result of the defendant's alleged conduct. The defendant appeals, and we modify the judgmentto unconditionally dismiss, for failure to state a cause of action, the causes of action to recoverdamages for fraudulent misrepresentation, tortious interference with contract, and conspiracy,and for an award of an attorney's fee.
In determining a motion to dismiss pursuant to CPLR 3211 (a) (7), the complaint must beafforded a liberal construction, and the facts as alleged therein are to be accepted as true, with thepleading being accorded every favorable inference (see Leon v Martinez, 84 NY2d 83,87-88 [1994]). Here, while the plaintiff alleged that the defendant engaged in fraudulentmisrepresentation by successfully bidding on the property without intending to close on thepurchase, general allegations that a defendant entered into a contract with the intent not toperform are insufficient to state a cause of action to recover damages for fraud, and the SupremeCourt should have dismissed that cause of action insofar as asserted against the defendant on thatbasis (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 318 [1995]; Stangel v Zhi Dan Chen, 74 AD3d1050, 1052 [2010]).
Similarly, the cause of action to recover damages for tortious interference with contractshould have been dismissed insofar as asserted against the defendant, since the plaintiff failed toplead " 'the existence of a valid contract between [the plaintiff] and a third party, and that thedefendant intentionally procured the third party's breach of that contract without justification' "(J.M. Bldrs. & Assoc., Inc. vLindner, 67 AD3d 738, 741 [2009], quoting Dome Prop. Mgt., Inc. v Barbaria, 47 AD3d 870, 870 [2008]).Moreover, to the extent that this cause of action may be construed as one to recover for tortiousinterference with prospective economic advantage, the alleged conduct by the defendant is notsufficiently culpable to support such a cause of action (see generally Carvel Corp. v Noonan, 3 NY3d 182, 190 [2004];NBT Bancorp v Fleet/Norstar Fin. Group, 87 NY2d 614, 621-622 [1996]; Adler v 20/20 Cos., 82 AD3d 915,918 [2011]).
With regard to the conspiracy cause of action, New York does not recognize an independentcause of action based upon a civil conspiracy to commit a tort (see Dickinson v Igoni, 76 AD3d943, 945 [2010]; Hebrew Inst. forDeaf & Exceptional Children v Kahana, 57 AD3d 734, 735 [2008]). Moreover, thecause of action to recover counsel fees "for the bringing of this action" should have beendismissed for failure to state a cause of action, as the plaintiff did not allege any lawful basisupon which such fees would be recoverable.
Finally, the Supreme Court erred in failing to award the defendant costs and disbursements(see CPLR 8101, 8201, 8301 [a]; Diaz v Audi of Am., Inc., 57 AD3d 828, 832 [2008]).
The defendant's remaining contentions are without merit. Mastro, J.P., Belen, Sgroi andMiller, JJ., concur.