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Appellate Division, Second Department: October 6, 2023

Handdown List released on:October 4, 2023

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By Iannacci, J.P.; Genovesi, Dowling, Voutsinas, JJ.

YEKATERINA TUMAYEVA, res, v. DMITRY GEYBER, ETC., app — (Index No. 515695/20) Fleischner Potash, LLP, Mineola, NY (Evan A. Richman of counsel), for appellant. In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Kings County (Debra Silber, J.), dated February 5, 2021. The order, insofar as appealed from, denied that branch of the defendant’s motion which was pursuant to CPLR 3211(a) to dismiss the first cause of action. ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant’s motion which was pursuant to CPLR 3211(a) to dismiss the first cause of action is granted. The plaintiff entered into a contract with a third-party seller to purchase a condominium unit in Oceana Condominium No. 2 (hereinafter Oceana). As recognized in the plaintiff’s contract with the third-party seller, Oceana had a right of first refusal to purchase the unit, which it could waive by mere inaction within a specified amount of time and without a written waiver. The plaintiff commenced this action seeking, in the first cause of action, to recover damages for tortious interference with contract. The plaintiff alleged that the defendant, the president of the board of managers of Oceana, intentionally procured a breach of the contract by waiving Oceana’s right of first refusal through inaction and refusing to provide her with a written waiver, such that she was unable to obtain financing and title insurance. The defendant moved, inter alia, pursuant to CPLR 3211(a) to dismiss the first cause of action. In an order dated February 5, 2021, the Supreme Court, among other things, denied that branch of the motion. The defendant appeals.

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