Opinion
October 19, 1992
Appeal from the Supreme Court, Nassau County (Christ, J.).
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
Although the dismissal of the complaint does not, in itself, extinguish the appellants' counterclaims (see, CPLR 3019 [d]; Ballen v Aero Mayflower Tr. Co., 144 A.D.2d 407, 410), the counterclaims in issue were without merit. The contract provided that rescission was to be the sole remedy for the plaintiff buyer's failure to provide a timely mortgage commitment, and the appellant sellers are thus unable to maintain a counterclaim for damages.
The appellants failed to show that the plaintiff brought the underlying action for the sole purpose of harming their contract with another purchaser, and therefore have no claim for tortious interference with contractual relations (see, Lerman v Medical Assocs., 160 A.D.2d 838, 839).
Finally, the plaintiff's notice of pendency was properly filed in the context of this action (see, Berman v Silver, Forrester Schisano, 156 A.D.2d 624, 625-626), and the appellants alleged no abuse of the notice of pendency after it was filed. They have therefore failed to plead a cause of action alleging abuse of process (see, Brown v Bethlehem Terrace Assocs., 136 A.D.2d 222, 225; Anderson v Pegalis, 150 A.D.2d 315, 316-317). Rosenblatt, J.P., Eiber, O'Brien and Ritter, JJ., concur.