Ivan Mogull Music Corp. v. Madison-59th Street Corp., MADISON-59TH

• Decision Date: 26 June 1990
• Docket Number: MADISON-59TH
• Citation: 162 A.D.2d 336,556 N.Y.S.2d 906
• Parties: IVAN MOGULL MUSIC CORPORATION, Plaintiff-Respondent-Appellant, v.STREET CORPORATION et al., Defendants-Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 906

556 N.Y.S.2d 906

162 A.D.2d 336

IVAN MOGULL MUSIC CORPORATION, Plaintiff-Respondent-Appellant, v. MADISON-59TH STREET CORPORATION et al Defendants-Appellants-Respondents.

Supreme Court, Appellate Division First Department.

June 26, 1990.

C.M. Mason, New York City, for plaintiff-respondent-appellant.

V. Lipari, New York City, for defendants-appellants-respondents.

Before KUPFERMAN, J.P., and ROSS, KASSAL, ELLERIN and WALLACH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Herman Cahn, J.), entered on or about November 28, 1988, denying defendants' motion for summary judgment dismissing the complaint and plaintiff's cross-motion to strike defendants' answer, unanimously modified, on the law, defendants' motion for summary judgment dismissing the complaint granted and, as so modified, the order is otherwise affirmed, with costs.

Plaintiff's three causes of action allege breach of contract and tortious interference with prospective business relations based upon defendants' allegedly unreasonable refusal to approve plaintiff's proposed sub-sublease of 800 square feet of its subleased premises to Lillies of the Field, Inc.

Absent privity of contract between plaintiff, a sublessee, and defendants, the prime landlord and its agent, defendants are entitled to summary judgment dismissing the first cause of action for breach of contract. (See, Allied Control Co. v. C.F.A. Graphics, 43 A.D.2d 678, 350 N.Y.S.2d 143). Indeed, plaintiff, in its brief, acknowledges that the alleged basis for liability is in tort, not contract. As to the remaining causes of action which plaintiff contends state cognizable claims for racial discrimination and prima facie tort in addition to tortious interference with prospective business relations, such allegations fail to justify an exception to the general rule that breach of contract does not, by itself, give rise to a tort action (Manley v. Pandick Press, Inc., 72 A.D.2d 452, 454, 424 N.Y.S.2d 902, appeal dismissed, 49 N.Y.2d 981, 428 N.Y.S.2d 950, 406 N.E.2d 805). Moreover, plaintiff's conclusory allegation that defendants' refusal to consent to Lillies' sub-sublease was because its principals were black and female is insufficient to defeat defendants' summary judgment motion which is supported by a detailed affidavit of defendant Collins Tuttle's senior vice president stating that the refusal to consent to the sub-subtenancy was based on Lillies' brief operating history and financial...