Opinion
Argued April 21, 1971
Decided May 26, 1971
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department.
John F. Fitzsimons, in person, and Joseph F. Clunan for John F. Fitzsimons, appellant.
Louis J. Lefkowitz, Attorney-General ( Philip Weinberg, Samuel A. Hirshowitz and Thomas Riccobono of counsel), for respondent.
Order reversed, without costs, and the determination of respondent annulled in the following memorandum: Petitioner procured the eventual buyer prior to the inception of the exclusive agreement with the complaining broker and consummated the sale after its expiration. In the interim, during the exclusive period, there was no proof of actual interference with any prospective purchaser obtained by complainant and the proof is insubstantial with respect to his conduct during that period to give rise to a charge of "untrustworthiness" under section 441-c of the Real Property Law ( Matter of Chiano v. Lomenzo, 26 A.D.2d 469).
Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL and GIBSON. Judge JASEN dissents and votes to affirm on the opinion at the Appellate Division.