Summary
requiring the defendant to have knowledge of the business relationship
Summary of this case from Bilinski v. Keith Haring Found., Inc.Opinion
2011-12-20
534 EAST 11TH STREET HOUSING DEVELOPMENT FUND CORPORATION, Plaintiff–Respondent, v. Peter HENDRICK, Defendant–Appellant.
Finder Novick Kerrigan LLP, New York (Thomas P. Kerrigan of counsel), for appellant. Edward Joseph Filemyr IV, New York, for respondent.
Finder Novick Kerrigan LLP, New York (Thomas P. Kerrigan of counsel), for appellant. Edward Joseph Filemyr IV, New York, for respondent.
GONZALEZ, P.J., MAZZARELLI, ACOSTA, SWEENY, ROMÁN, JJ.
Order, Supreme Court, New York County (Walter B. Tolub, J.), entered November 17, 2009, which, to the extent appealed from, granted plaintiff's motion to dismiss defendant's affirmative defenses and third and fourth counterclaims, unanimously modified, on the law, to reinstate the affirmative defenses and the counterclaim for tortious interference, and otherwise affirmed, without costs.
On a motion to dismiss affirmative defenses pursuant to CPLR 3211(b), the plaintiff bears the burden of demonstrating that the defenses are without merit as a matter of law ( see e.g. Vita v. New York Waste Servs., LLC, 34 A.D.3d 559, 559, 824 N.Y.S.2d 177 [2006]; Santilli v. Allstate Ins. Co., 19 A.D.3d 1031, 1032, 797 N.Y.S.2d 226 [2005] ). In deciding a motion to dismiss a defense, the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed ( Warwick v. Cruz, 270 A.D.2d 255, 255, 704 N.Y.S.2d 849 [2000] ). A defense should not be stricken where there are questions of fact requiring trial ( see e.g. Atlas Feather Corp. v. Pine Top Ins. Co., 128 A.D.2d 578, 578–579, 512 N.Y.S.2d 844 [1987] ).
While not listed under the sections specifically titled for each defense, defendant pled factual allegations in the body of his answer sufficient to give notice of what he intends to prove under his defenses ( see LoPinto v. Roldos, 235 A.D.2d 233, 652 N.Y.S.2d 508 [1997] ).
Defendant also sufficiently pled a counterclaim for tortious interference with a business relationship. A claim for tortious interference with a prospective business relationship (i.e., an economic advantage) must allege: (1) the defendant's knowledge of a business relationship between the plaintiff and a third party; (2) the defendant's intentional interference with the relationship; (3) that the defendant acted by the use of wrongful means or with the sole purpose of malice; and (4) resulting injury to the business relationship ( see NBT Bancorp v. Fleet/Norstar Fin. Group, 87 N.Y.2d 614, 641 N.Y.S.2d 581, 664 N.E.2d 492 [1996]; Thome v. Alexander & Louisa Calder Found., 70 A.D.3d 88, 890 N.Y.S.2d 16 [2009], lv. denied 15 N.Y.3d 703, 2010 WL 2572017 [2010] ).
Here, defendant has pled that plaintiff, who knew defendant had a contract to sell his apartment, interfered with that relationship by refusing, in bad faith, to approve his buyer after defendant refused to take part in a fraudulent scheme to lower a buyer's tax burden so that the apartment could be purchased by a shareholder's son.
Plaintiff relies on the business judgment rule, which provides that so long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith, courts will not substitute their judgment for the board's ( see Matter of Levandusky v. One Fifth Ave. Apt. Corp., 75 N.Y.2d 530, 538, 554 N.Y.S.2d 807, 553 N.E.2d 1317 [1990] ). However, pre-discovery dismissal of pleadings in the name of the business judgment rule is inappropriate where those pleadings suggest that the directors did not act in good faith ( see Bryan v. West 81 St. Owners Corp., 186 A.D.2d 514, 589 N.Y.S.2d 323 [1992] ).
However, the motion court correctly dismissed defendant's fourth counterclaim, seeking attorney's fees. As there is no allegation that either party was in default of any of the provisions of the proprietary lease, the defendant is not entitled to recover attorney's fees ( see Salvato v. St. David's School, 307 A.D.2d 812, 763 N.Y.S.2d 42 [2003] ).