WATER WORKS REALTY CORP v. CYTRYN

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Supreme Court, Appellate Division, Second Department, New York.

WATER WORKS REALTY CORP., appellant, v. Aron CYTRYN, et al., respondents, et al., defendants.

Decided: July 26, 1999

LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, WILLIAM C. THOMPSON and THOMAS R. SULLIVAN, JJ. Robert P. Lynn, Jr., L.L.C., Mineola, N.Y. (John Dunne of counsel), for appellant. Farrell Fritz, P.C., Uniondale, N.Y. (Sanford Strenger of counsel), for respondents Aron Cytryn, Maurice Radzik, and West Lawrence Associates, Inc. Ryan & Brennan, L.L.P., Floral Park, N.Y. (John E. Ryan and John M. Donnelly of counsel), for respondent Simon Pelman. Kramer Levin Naftalis & Frankel, L.L.P., New York, N.Y. (Charlotte Moses Fischman and Susan Jacquemot of counsel), for respondents Jan Burman, Sidney Engel, Jerome Lazarus, Lewis Henkind, and Sol Henkind.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of (1) an order of the Supreme Court, Nassau County (McCaffrey, J.), entered April 13, 1998, as granted those branches of the motion of the defendants Aron Cytryn, Maurice Radzik, and West Lawrence Associates, Inc., which were for summary judgment dismissing the first cause of action asserted against them, and (2) an order of the same court, entered September 21, 1998, as, upon reargument, adhered to so much of its original determination as granted the separate motions of the defendant Simon Pelman and the defendants Jan Burman, Sidney Engel, Jerome Lazarus, Lewis Henkind, and Sol Henkind which were for summary judgment dismissing the fifth cause of action asserted against them.

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

The Supreme Court properly granted summary judgment in favor of the defendants Simon Pelman, Jan Burman, Sidney Engel, Jerome Lazarus, Lewis Henkind, and Sol Henkind (hereinafter the Merrick Members) dismissing the plaintiff's fifth cause of action alleging tortious interference with the alleged contract between the plaintiff and the defendants Aron Cytryn, Maurice Radzik and a nonparty, Carol Friia (hereinafter the lessors), to develop a nursing home at a site owned by the plaintiff.   The plaintiff failed to allege an actual breach of contract, as required (see, Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 424, 646 N.Y.S.2d 76, 668 N.E.2d 1370;  NBT Bancorp v. Fleet/Norstar Fin. Group, 87 N.Y.2d 614, 621, 641 N.Y.S.2d 581, 664 N.E.2d 492).   Instead, the plaintiff merely alleged that the Merrick Members induced an “attempt” to transfer a Certificate of Need for the nursing home.   In any event, the evidence, including corroboration by the defendant Cytryn demonstrates that the Merrick Members never solicited the lessors to breach the contract.   Rather, the lessors acted independently in exploring alternative business arrangements, including the initiation of discussions with the defendant Pelman regarding the transfer of the Certificate of Need for the nursing home (see, Rapp Boxx v. MTV, Inc., 226 A.D.2d 324, 325, 642 N.Y.S.2d 228).

The plaintiff's remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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