Ordered that the appeal from the order dated May 5, 1987 is dismissed, without costs or disbursements, as that order was superseded by the order dated August 25, 1987; and it is further,
Ordered that the order dated August 25, 1987 is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff subsequently commenced the instant action against (1) Gedell, for breach of contract and fraudulent inducement, and (2) Fingerhut, for breach of a fiduciary obligation. In addition, the plaintiff sought treble damages against Fingerhut under Judiciary Law § 487, which provision
Initially, we note that in his reply brief, the plaintiff concedes the existence of issues of fact with respect to the cause of action for fraudulent inducement, thereby removing this issue from our consideration.
With respect to the cause of action for breach of contract, the plaintiff failed to establish his entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 N.Y.2d 320). Specifically, triable issues of fact exist as to whether the termination clause in the contract was intended to permit unilateral cancellation by the seller (see, Germano v Benjamin, 64 A.D.2d 884) and, if so, whether the seller acted in good faith in canceling the contract, and as to whether the parties intended to limit damages for the seller's breach by the inclusion of that clause (see, Mancini-Ciolo, Inc. v Scaramellino, 118 A.D.2d 761; Mokar Props. Corp. v Hall, 6 A.D.2d 536).
The court also properly granted Fingerhut's motion for summary judgment dismissing the complaint as against him. Under ordinary circumstances, an attorney who does not represent a party may only be held liable to that party upon a showing of fraud or collusion, or a malicious or tortious act (Chelsea Marina v Scoralick, 94 A.D.2d 189; Singer v Whitman & Ransom, 83 A.D.2d 862). No such showing has been made at bar. Nor has an issue of fact been raised as to whether Fingerhut breached the fiduciary obligation he owed to the plaintiff by virtue of his status as escrow agent under the contract between the plaintiff and Gedell (see, Director Door Corp. v Marchese & Sallah, 127 A.D.2d 735; Bardach v Chain Bakers, 265 App Div 24, affd 290 N.Y. 813). There is nothing in the record to indicate that Fingerhut conducted any activity or failed to disclose any information which would have adversely affected the plaintiff's rights under the escrow agreement.