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Constant v. Hallmark Cards, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Apr 15, 1991
172 A.D.2d 641 (N.Y. App. Div. 1991)

Summary

requiring "a particularized statement of the reasonable, identifiable and measurable special damages" and noting that "[b]road and conclusory terms are simply insufficient to fulfill this critical element"

Summary of this case from Langhorne v. Port Authority of New York

Opinion

April 15, 1991

Appeal from the Supreme Court, Queens County (Rosenzweig, J.).


Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

The plaintiffs claim to have suffered damages as a result of the failure of the defendant Hallmark Cards, Inc., to give consent to the sale by the plaintiffs of their interest in Baby Nicholas, Inc., doing business as Sophia's Hallmark. We find that the Supreme Court properly dismissed the complaint.

The plaintiffs' first, fourth and sixth causes of action, brought pursuant to General Business Law § 340 (the Donnelly Act) were properly dismissed since the plaintiffs have not only failed to show how the economic impact of the alleged conspiracy restrains trade in the market (see, Primo Constr. v. Swig Weiler Arnow Mgt. Co., 160 A.D.2d 379) but have also failed to adequately allege impairment of competition in a relevant market (see, Associates Capital Servs. Corp. v. Fairway Private Cars, 590 F. Supp. 10, 13; see also, International Tel. Prod. v Twentieth Century-Fox Tel. Div., 622 F. Supp. 1532, 1540).

The plaintiffs' twelfth cause of action, to recover damages for prima facie tort, likewise fails because the plaintiffs did not allege that the defendants' sole motivation in denying permission for the sale was "disinterested malevolence" (see, Schlotthauer v. Sanders, 143 A.D.2d 84, 85; see also, Burns Jackson Miller Summit Spitzer v. Lindner, 59 N.Y.2d 314, 333). Moreover, this cause of action also lacked a particularized statement of the reasonable, identifiable and measurable special damages (see, Broadway 67th St. Corp. v. City of New York, 100 A.D.2d 478, 486). Broad and conclusory terms are simply insufficient to fulfill this critical element of the allegations necessary to sustain a cause of action to recover for prima facie tort (see, Miller v. Geloda/Briarwood Corp., 136 Misc.2d 155, 157).

The plaintiffs' eighth and eleventh causes of action both for tortious interference, were properly dismissed because an enforceable contract was not entered into between the plaintiffs and the third party to whom the plaintiffs were to sell. The sublease provides that upon the transfer of 50% or more of the plaintiffs' interest in Baby Nicholas, Inc., the plaintiffs were required to obtain written consent from a subsidiary of the defendant Hallmark Cards, Inc., for the assignment of the sublease. The plaintiffs assert that they contracted with Eli Garber to transfer their remaining 50% interest in Baby Nicholas, Inc. However, the plaintiffs did not allege that they obtained prior written consent for the assignment of the sublease. Therefore, this documentary evidence conclusively establishes that the contract with Garber is not enforceable (see, CPLR 3211 [a] [1]). Since the plaintiffs have failed to allege a prima facie case the court properly found that this cause of action fails.

The plaintiffs' contention that the motion by the defendants John Bournias and Panagiota Bournias (hereinafter the Bournias defendants) for summary judgment should not have been granted, is without merit. The thirteenth cause of action fails because the sublease agreement proffered in defense by the Bournias defendants conclusively establishes that the plaintiffs and the Bournias defendants did not enter into a valid contract (see, CPLR 3211 [a] [1]). Likewise, the fourteenth cause of action against the Bournias defendants for breach of a fiduciary duty fails because the relationship between the plaintiffs and the Bournias defendants was that of shareholders and not fiduciaries. Therefore, the Bournias defendants could not have breached any fiduciary duties (see, Bevilacque v. Ford Motor Co., 125 A.D.2d 516, 519-520).

We have reviewed the plaintiffs' remaining contentions and find them to be without merit. Thompson, J.P., Lawrence, Harwood and O'Brien, JJ., concur.


Summaries of

Constant v. Hallmark Cards, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Apr 15, 1991
172 A.D.2d 641 (N.Y. App. Div. 1991)

requiring "a particularized statement of the reasonable, identifiable and measurable special damages" and noting that "[b]road and conclusory terms are simply insufficient to fulfill this critical element"

Summary of this case from Langhorne v. Port Authority of New York
Case details for

Constant v. Hallmark Cards, Inc.

Case Details

Full title:SOPHIA CONSTANT et al., Appellants, v. HALLMARK CARDS, INC., et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 15, 1991

Citations

172 A.D.2d 641 (N.Y. App. Div. 1991)
568 N.Y.S.2d 441

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