Summary
holding that a cause of action for breach of the covenant of good faith and fair dealing was properly dismissed as against the individual defendants since no contract existed between the plaintiff and the individual defendants
Summary of this case from Elite Investigations, Inc. v. Normal EarsOpinion
2012-02-2
AHEAD REALTY LLC, et al., Plaintiffs–Appellants, v. INDIA HOUSE, INC., et al., Defendants–Respondents.
The Dweck Law Firm, LLP, New York (H.P. Sean Dweck of counsel), for appellants. Wolf Haldenstein Adler Freeman & Herz LLP, New York (Debra M. Schoenberg of counsel), for respondents.
The Dweck Law Firm, LLP, New York (H.P. Sean Dweck of counsel), for appellants. Wolf Haldenstein Adler Freeman & Herz LLP, New York (Debra M. Schoenberg of counsel), for respondents.
MAZZARELLI, J.P., FRIEDMAN, CATTERSON, RENWICK, ROMÁN, JJ.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered July 20, 2011, which, to the extent appealed from as limited by the briefs, granted defendants' motion to dismiss plaintiff PJ Associates, Inc.'s (PJ) claims for tortious interference, unfair competition, breach of covenant of good faith, declaratory judgment and breach of contract (the first, second, fourth, fifth and sixth causes of action), and order, same court and Justice, entered August 9, 2011, which denied PJ's motion for a preliminary injunction tolling its cure period under a certain default notice, and which directed entry of judgment, unanimously affirmed, without costs.
This action arises from a Food Facilities Management and License Agreement (FFMLA) between PJ, a food services company, and defendant India House, Inc., a private social club, pursuant to which, in consideration for running the food and beverage service at India House, PJ agreed to assume responsibility for a significant renovation of the building and the real estate taxes on the property during the 25–year term of the agreement.
The first cause of action, which alleges that India House wrongfully induced a third party not to hold its annual dinner at India House, is insufficient to state a claim for harassment or tortious interference with contract since persuasion alone is not enough to constitute wrongful means ( see Carvel v. Noonan, 3 N.Y.3d 182, 190–192, 785 N.Y.S.2d 359, 818 N.E.2d 1100 [2004] ). To the extent this cause of action alleges tortious interference with the FFMLA, it fails, because asserting that a defendant tortiously interfered with its own contract “quite clearly does not state a legally sufficient cause of action” ( Manley v. Pandick Press, Inc., 72 A.D.2d 452, 454, 424 N.Y.S.2d 902 [1980], lv. dismissed 49 N.Y.2d 981, 428 N.Y.S.2d 950, 406 N.E.2d 805 [1980] ).
The second cause of action, for intentional harm to business and unfair competition, fails to set forth the requisite showing of bad-faith misappropriation of a commercial advantage ( see LoPresti v. Massachusetts Mut. Life Ins. Co., 30 A.D.3d 474, 476, 820 N.Y.S.2d 275 [2006] ).
The fourth cause of action for breach of the covenant of good faith and fair dealing as against the individual defendants was properly dismissed since no contract exists between PJ and the individual defendants ( see Duration Mun. Fund, L.P. v. J.P. Morgan Sec. Inc., 77 A.D.3d 474, 908 N.Y.S.2d 684 [2010] ). This cause of action as asserted against India House was also properly dismissed since it is duplicative of the breach of contract claim.
The fifth cause of action, for declaratory judgment, is insufficient because the complaint contains only conclusory allegations that fail to state a cause of action upon which relief may be granted (see American News Co. v. Avon Publ. Co., Inc., 283 App.Div. 1041, 131 N.Y.S.2d 566 [1954] ).
The sixth cause of action, for breach of contract, fails to allege any instance where a change was made without PJ's express written consent, or otherwise specify an incident where India House breached the FFMLA.
With respect to PJ's motion for a preliminary injunction, the court appropriately determined that, with respect to the outstanding default notice, PJ has not demonstrated irreparable harm, a likelihood of success on the merits or that the balance of equities tips in its favor ( see Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 862, 552 N.Y.S.2d 918, 552 N.E.2d 166 [1990] ).
We have considered plaintiffs' remaining arguments and find them unavailing.