David LEONARD, Plaintiff-Respondent, v. Joseph KANNER, et al., Defendants, Dime Savings Bank of New York, Defendant-Appellant.
Order, Supreme Court, New York County (Elliott Wilk, J.), entered on or about September 3, 1996, which granted plaintiff's motion to amend the complaint to add a cause of action for fraud and a cause of action for breach of contract against defendant The Dime Savings Bank of New York and for summary judgment to the extent that plaintiff was permitted to amend the complaint to add a cause of action for breach of contract against The Dime and the amended complaint was deemed served upon service of a copy of the court's order, unanimously reversed, to the extent appealed from, on the law, without costs, and plaintiff's motion denied with leave to replead a claim, if any, for return of plaintiff's downpayment to The Dime.
That part of plaintiff's motion seeking to add a cause of action for breach of contract, based upon his claim that The Dime breached its contract of sale with him by failing to terminate the existing proprietary lease on the apartment at issue, should have been denied. Plaintiff was a party to the sale agreement only and was neither a party to nor an intended third-party beneficiary of the existing proprietary lease. Thus, he was not entitled to premise a claim upon its termination provisions, which were not incorporated into the contract of sale. However, since it appears that plaintiff may possibly have a cause of action against The Dime for return of his downpayment pursuant to Paragraph 6 of the contract of sale, we deny his motion to amend his complaint with leave to replead a cause of action, if any, seeking return of his downpayment to The Dime.