Bradbury v. Cope-Schwarz

• Decision Date: 07 July 2005
• Docket Number: 97453.
• Parties: LINDA ANN MARIE BRADBURY, Appellant, v. DIANA L. WOLLER COPE-SCHWARZ et al., Respondents.
• Court: New York Supreme Court — Appellate Division

20 A.D.3d 657

798 N.Y.S.2d 207

2005 NY Slip Op 05853

LINDA ANN MARIE BRADBURY, Appellant, v. DIANA L. WOLLER COPE-SCHWARZ et al., Respondents.

97453.

Appellate Division of the Supreme Court of the State of New York, Third Department.

July 7, 2005.

Appeals (1) from an order of the Supreme Court (Coccoma, J.), entered June 7, 2004 in Delaware County, which granted defendants' motion to dismiss the complaint for failure to state a cause of action, and (2) from an order of said court, entered September 29, 2004 in Delaware County, which, inter alia, clarified its prior decision.

Cardona, P.J.

In April 2003, plaintiff entered into a contract to purchase real property located in the Town of Middletown, Delaware County, from defendant Diana L. Woller Cope-Schwarz (hereinafter the seller). The closing date was set for June 26, 2003, however, the contract did not include a "time of the essence" clause. Prior to the sale, the seller retained defendant Frank P. Lumia Real Estate Plus^* to represent her interests. As relevant herein, the contract did include a mortgage contingency clause stating that the contract was contingent upon plaintiff: "obtaining approval of a mortgage loan secured by the Property in the amount of (99%) of the purchase price of $45,540.00 or such lesser sum as [plaintiff] will be willing to accept . . . [Plaintiff] agrees to use diligent efforts to obtain said approval and will apply for a mortgage loan within (7) business days of having received a signed and accepted Contract. This contingency will be deemed waived unless [plaintiff] notifies Seller, Seller's attorney or the Broker in writing . . . no later than forty-five (45) days after [plaintiff] or [plaintiff's] attorney's receipt of a fully executed copy of this Contract of [plaintiff's] inability to obtain said approval." The contract further included a nonassignment clause stating that plaintiff may not assign the contract without the seller's approval "and any purported assignment made without such consent is void."

Following execution of the contract, the record reveals several turbulent exchanges between the parties over such issues as, inter alia, the timeliness of the delivery of the executed contract and the accessibility of the property for appraisal. On June 26, 2003, the seller's attorney sent a letter pronouncing "that time is of the essence" and, if plaintiff failed to close by July 15, 2003, she would be in default. However, on July 3, 2003, the seller's attorney delivered another letter to plaintiff stating that since "[p]rompt application for a mortgage was not made and diligently pursued by [plaintiff,] . . . the seller hereby terminates the contract." According to the seller, she learned from her broker that plaintiff had not obtained a mortgage commitment, however, one had been issued to one Donna Englerth, who the seller did not know. The seller also set forth that Englerth's name was added to the contract of sale after its execution without her permission. Although plaintiff's attorney continued to represent that she was ready and willing to go forward with the closing, a sale of the property to defendants Steven Weinstein and Elizabeth Davis (hereinafter collectively referred to as the buyers) was negotiated by the seller's broker and completed on August 11, 2003.

Plaintiff brought a claim for breach of contract in September 2003 against the seller, the buyers, the broker and its employees. That complaint was dismissed against all defendants except the seller. In April 2004, plaintiff commenced this action against all of the same defendants alleging tortious interference with a contract. Supreme Court dismissed the complaint in its entirety, prompting these appeals by plaintiff.

Notably, to sustain a claim for tortious interference with a contract, it must be established that a valid contract existed which a third party knew about, the third party intentionally and improperly procured the breach of the contract and the breach resulted in damage to the plaintiff (see Kronos, Inc. v AVX Corp., 81 NY2d 90, 94 [1993]; Israel v Wood Dolson Co., 1 NY2d 116, 120 [1956]). Upon review of this record, we find that plaintiff's action for tortious interference with a contract was properly dismissed against all defendants.

Initially, with respect to the...