Brown v. Bethlehem Terrace Associates
| Decision Date | 24 March 1988 |
| Citation | 525 N.Y.S.2d 978,136 A.D.2d 222 |
| Parties | Elliot BROWN, Respondent, v. BETHLEHEM TERRACE ASSOCIATES et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Whiteman, Osterman & Hanna (Scott N. Fein and Sue Rosenshein, of counsel), Albany, for appellants.
Roland, Fogel, Koblenz & Carr (Emilio Petroccione, of counsel), Albany, for respondent.
Before WEISS, J.P., and YESAWICH, LEVINE and HARVEY, JJ.
Defendant Bethlehem Terrace Associates (hereinafter Bethlehem Terrace), a partnership in which defendants Frank Vecchiotti and Vincent Vecchiotti are general partners, owns an apartment complex known as Bethlehem Terrace Apartments. Plaintiff is the ultimate assignee of an offer to purchase the complex for $6.6 million, entered into September 11, 1984 and recorded in the Albany County Clerk's office on October 19, 1984. The offer to purchase provided that the parties were to execute a standard purchase and sale agreement based on the same terms on or before October 5, 1984; no such agreement has been executed. Plaintiff avers in his complaint that on October 8, 1984, a date agreed upon by the parties to execute a more formal purchase and sale agreement, defendants' counsel apprised plaintiff of a tax problem had by one of Bethlehem Terrace's general partners which would be generated by the proposed sale. In an effort to cooperate with the sellers in their attempt to resolve that problem, plaintiff concurred in adjourning the matter until December 3, 1984. At that time plaintiff rescinded the September 11, 1984 agreement, purportedly in reliance upon defense counsel's representation that only if plaintiff did so would defendants continue good-faith negotiations directed at executing a purchase and sale agreement based on the terms of the September 11, 1984 agreement. Defendants maintain that the September 11, 1984 agreement expired by its own terms well before it was rescinded.
When it became apparent that defendants had no intention of selling on the previously agreed terms, plaintiff commenced the instant action for specific performance of the offer to purchase and filed a lis pendens affecting the apartment complex. In their verified answer, defendants asserted three counterclaims, all revolving around the damage ostensibly caused them by the filing of the lis pendens and the suit plaintiff had initiated against them, namely, difficulty renegotiating a mortgage, the inability to sell the subject property and counsel fees. After serving a reply, plaintiff moved to dismiss the counterclaims for failure to state a cause of action (CPLR 3211[a][7] ). Supreme Court granted plaintiff's motion in its entirety. We affirm.
On appeal defendants have abandoned all but three theories of liability: slander of title, abuse of process and interference with prospective advantage. At issue is whether the facts as alleged by defendants satisfy the elements of those or any other causes of action ( see, Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17).
In their first counterclaim defendants allege that plaintiff's filing of the lis pendens in bad faith, together with perceived libelous and slanderous allegations in the complaint charging defendants with misrepresentation and fraudulent conduct, constitute slander of title per se. The elements of slander of title are (1) a communication falsely casting doubt on the validity of complainant's title, (2) reasonably calculated to cause harm, and (3) resulting in special damages ( Carnival Co. v. Metro-Goldwyn-Mayer, 23 A.D.2d 75, 77, 258 N.Y.S.2d 110). Because plaintiff's allegations contained in the complaint are absolutely privileged ( see, Vevaina v. Paccione, 125 A.D.2d 392, 393, 509 N.Y.S.2d 113, lv. denied 69 N.Y.2d 607, 514 N.Y.S.2d 1025, 507 N.E.2d 321), the viability of this cause of action necessarily rests on the filing of the lis pendens....
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