Midtown Candy Co., Inc.

Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, First DepartmentApr 19, 1990
160 A.D.2d 484 (N.Y. App. Div. 1990)
160 A.D.2d 484554 N.Y.S.2d 149

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April 19, 1990

Appeal from the Supreme Court, New York County (Herman Cahn, J.).

The record shows that the plaintiff and defendants Helmsley-Spear, Inc. and Mid-City Associates entered into the negotiation for a new retail lease on a new space in a building known as One Penn Plaza when plaintiff's original lease on a different space expired and defendants would not extend it. Although the parties negotiated, they never entered into a lease. Plaintiff's conclusory allegation to the contrary is unsupported by any specifics or by any documentary evidence, such as a copy of the purported lease. From the record, it is clear that no binding agreement was ever reached but that the two leases which were drafted by the landlord were intended for discussion purposes only.

With no contract in existence, there is no cause of action for breach of contract (Tebbutt v. Niagara Mohawk Power Corp., 124 A.D.2d 266, 268) or for tortious interference with contract (Long Is. Pen Corp. v. Shatsky Metal Stamping Co., 94 A.D.2d 788, 789). There is no evidence of unconscionability that would justify imposing the equitable doctrine of estoppel in this common situation of one party backing out of negotiations for a new lease before a writing was executed (see, e.g., American Bartenders School v. 105 Madison Co., 91 A.D.2d 901, 902).

The purported cause of action for prima facie tort must fail because plaintiff has not pleaded or raised a triable issue of fact as to special damages (Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143) or as to disinterested malevolence (Schlotthauer v Sanders, 143 A.D.2d 84, 85). Plaintiff's pleading of the tort of civil conspiracy must fail because no such tort exists (Satin v Satin, 69 A.D.2d 761, 762). Plaintiff has not pleaded or raised a triable issue of fact as to malicious, fraudulent or deceitful acts that would support a cause of action for tortious interference with precontractual relations (Gertler v. Goodgold, 107 A.D.2d 481, 490, affd 66 N.Y.2d 946).

There was no need to withhold summary judgment pending discovery. Plaintiff has not shown that any discovery was requested and has not identified even one item of information it hopes to obtain that would raise a triable issue of fact. In short, plaintiff has not shown a likelihood that discovery would yield evidence otherwise in the exclusive control of the defendants (see, Goldheart Intl. v. Vulcan Constr. Corp., 124 A.D.2d 507, 508).

Concur — Murphy, P.J., Carro, Milonas, Kassal and Wallach, JJ.