Opinion
6543 Index 114259/11
05-10-2018
Brian M. DELAURENTIS, Plaintiff–Appellant, v. Eric MALLEY, et al., Defendants–Respondents.
Brian M. DeLaurentis, P.C., New York (Brian M. DeLaurentis of counsel), for appellant. Gordon & Rees, LLP, New York (Jennifer A. Guidea of counsel), for respondents.
Brian M. DeLaurentis, P.C., New York (Brian M. DeLaurentis of counsel), for appellant.
Gordon & Rees, LLP, New York (Jennifer A. Guidea of counsel), for respondents.
Friedman, J.P., Tom, Kapnick, Kahn, Kern, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about October 12, 2016, which denied plaintiff's motion for summary judgment pursuant to CPLR 3212, and granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.
In this action to recover a broker's fee from defendant Malley on account of a lost sale, the IAS court properly determined that plaintiff, a licensed real estate broker, did not qualify as a third-party beneficiary under the RLS Universal Co–Brokerage Agreement/Rules and Regulations (the Co–Brokerage Agreement) according to its plain terms ( State of Cal. Pub. Employee's Retirement Sys. v. Shearman & Sterling, 95 N.Y.2d 427, 434–435, 718 N.Y.S.2d 256, 741 N.E.2d 101 [2000] ). Even if plaintiff was entitled to sue defendant (also a licensed real estate broker) under the agreement, plaintiff's allegations of breach grounded in, among other things, defendants' purported failure to disclose an offer and in making an unauthorized and fraudulent counteroffer, are flatly contradicted by the record. The IAS court properly dismissed plaintiff's breach of the implied covenant claim, which "may not be used as a substitute for a nonviable claim of breach of contract" ( StarVest Partners II v. Emportal, Inc., 101 A.D.3d 610, 613, 957 N.Y.S.2d 93 [1st Dept. 2012] ).
The claim for tortious interference with a business opportunity/prospective advantage also fails in light of plaintiff's unsupported factual allegations. On the law, the claim fails because (1) the conduct complained of was not directed specifically towards a third-party ( Arnon Ltd. [IOM] v. Beierwaltes, 125 A.D.3d 453, 454, 3 N.Y.S.3d 31 [1st Dept. 2015] and because (2) none of the alleged acts fell within the definition of "wrongful means" ( id. ; Carvel Corp. v. Noonan, 3 N.Y.3d 182, 191, 785 N.Y.S.2d 359, 818 N.E.2d 1100 [2004] ).
Plaintiff's claim for housing discrimination under Executive Law § 296(5)(c)(1) was also properly dismissed. Plaintiff has failed to make a prima facie showing that either he or his client were discriminated against on account of their sexual orientation (see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 [1973] ; Sayeh v. 66 Madison Ave. Apt. Corp., 73 A.D.3d 459, 461, 901 N.Y.S.2d 26 [1st Dept. 2010] ). There are no facts to support a finding that defendant denied plaintiff any services to which he was entitled, and plaintiff has failed to successfully raise an inference of discrimination ( id. ; Berner v. Gay Men's Health Crisis, 295 A.D.2d 119, 119, 743 N.Y.S.2d 99 [1st Dept. 2002] ).
The IAS court also correctly determined that there was no vicarious liability on the part of defendant Sotheby's in light of defendant Malley's lack of liability to plaintiff.
We have considered plaintiffs' remaining contentions and find them unavailing.