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Flag On The Play: Tortious Interference

In football, if you interfere with the receiver trying to catch the ball, that’s pass interference. In basketball, if you impede the forward progress of the player with the ball, you will draw a foul. In baseball, it is illegal to interfere with the runner between the base paths. Are you starting to discern a pattern here?

Much like in some of our favorite sports, it is also illegal to interfere with a prospective purchaser’s contract, or prospective contract, to purchase property. This was made clear in the recent unpublished Appellate Division case of D’Agostino v. Gesher LLC et als.

In D’Agostino, a broker or brokers allegedly deep-sixed plaintiff’s offer to a foreclosing bank to purchase a foreclosed property. The property was later sold to someone the broker knew for less than what Plaintiff had offered (the bank was unaware of the alleged shenanigans). Plaintiff sued, but his case was dismissed at the trial level because the judge felt there was no case without a signed contract with the bank. The Appellate Division reversed and found that plaintiff presented enough evidence to withstand a motion to dismiss his tortious interference claim. In doing so, the Appellate Division outlined the elements of a tortious interference claim as follows:

1) the existence of a protectable interest;

2) malice — i.e., defendant’s intentional interference without justification;

3) a reasonable likelihood that the interference caused the loss of the prospective gain; and

4) resulting damages.

It is okay to compete against others; however, the “play fair” rule of the playground “play fair” applies in all cases, including the purchase of real estate.