Opinion
300760/07.
Decided October 16, 2009.
Robin Kyle, Esq., New York, NY, Attorney for Plaintiffs Kyles.
Rehan Nazrali, Esq., New York, NY, Attorney for Defendant Ronald Hart.
Heiberger Associates, P.C., New York, NY, Attorney for Defendants Heiberger, et al.
The following three motions are consolidated for disposition:
(1) Defendants, HEIBERGER ASSOCIATES, P.C., LARRY McCOURT, DUNBAR POLAT, 736 RIVERSIDE DR., LLC, and CAPIN AND ASSOCIATES, (collectively referred to as HEIBERGER et al.), by their pre-answer motion, move to dismiss Plaintiffs' Complaint, pursuant to CPLR 3211(a)(1), upon a defense grounded on documentary evidence, and also pursuant to 3211(a)(7), for failure to state a cause of action; or, in the alternative, for a change of venue. In addition, HEIBERGER et al., request that this Court impose sanctions against Plaintiffs, and related relief.
CPLR 3211(a)(1) and (7) provide that: "A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: (1.) a defense is founded upon documentary evidence; or . . . (7.) the pleading fails to state a cause of action."
(2) The Order to Show Cause, submitted by Defendants HEIBERGER et al., requests that this Court consider the decision rendered by Hon. Herman Cahn, JSC, dated October 26, 2007, in a related matter entitled Kyle, Gilbert, and Kyle v. Hon. Gerald Lebovits, JHC, and 736 Riverside Drive, LLC, Index No.: 110838/2007.
(3) In a separate Motion, Defendant, RONALD HART, moves to dismiss Plaintiffs' Complaint; or, in the alternative, moves for a change of venue; and for other related relief.
HISTORY OF PRIOR ACTIONS AND PROCEEDINGS :
Plaintiffs, WILLIAM KYLE, KATHRYN GILBERT, and MARY KYLE, (KYLES) entered into rent stabilized leases with nonparty "Hudson Overlook, LLC", (the predecessor of Defendant 736 RIVERSIDE DR., LLC), the owner of premises located at 736 Riverside Drive, in Manhattan.
Defendant, RONALD HART, is the attorney who represented KYLES from July 2002 to June 2007, relating to disputes stemming from Plaintiffs' tenancy.
Defendant HART's "Time Sheets" reflect legal services he performed from July 2002 until June 2006. The outstanding balance due to HART was $426,054. ( See HART's "Time Sheets", annexed to Plaintiffs' Complaint, at Exhibit "G").
— The 2003 Non-payment Proceeding
In April 2003, Hudson Overlook, LLC, commenced a non-payment proceeding against KYLES, under L T Index No: 68658/03, (referred to as the 2003 non-payment case). After a trial, on December 23, 2004, KYLES were awarded money judgment in the amount of $21,373.40. Subsequently, in 2005, Hudson Overlook conveyed title to the building to Defendant RIVERSIDE DR., LLC.
( See post-trial Order by Hon. Ulysses B. Leverett, JHC, dated Dec. 23, 2004, annexed to Plaintiffs' Complaint, at Exhibit "B". See Plaintiffs' Complaint, ¶ 14-19. See history set forth in decision by Hon. Gerald Lebovits, JHC, dated Jan. 26, 2007).
— The 2006 Non-payment Proceeding
A second non-payment proceeding against KYLES was commenced in the Housing Court, by Defendant RIVERSIDE DR., LLC, in June 2006, under L T Index No: 77281/06, (referred to herein as the 2006 non-payment case).
( See Plaintiffs' Complaint, ¶ 19).
Defendant HEIBERGER ASSOCIATES, P.C., and one of its attorneys, Defendant, LAWRENCE McCOURT, have been representing Defendant RIVERSIDE DR., LLC, since the inception of the 2006 non-payment case.
( See Affirmation by Maxwell Breed, Esq., dated Oct. 1, 2007, ¶ 11).
In the 2006 non-payment case, KYLES made five (5) motions, which, as described by Judge Lebovits: "repetitively seek but one thing: attorneys' fees from 736 Riverside Drive, . . . for [KYLES'] prevailing against Hudson Overlook." By his decision dated January 26, 2007, the Judge Lebovits denied KYLES' five (5) motions; but granted KYLES the opportunity to "move for leave to amend their answer to add a counterclaim seeking attorneys' fees." ( See decision rendered by Hon. Lebovits, dated Jan. 26, 2007, p. 4-5).
KYLES' motion to amend their answer to include a claim for the legal fees incurred in the 2003 non-payment case was denied, without prejudice, by Honorable Peter Wendt, because, among other things, KYLES failed to include a copy of the lease. ( See decision by Hon. Peter Wendt, Judge, Housing Part, dated March 30, 2007, annexed to Plaintiffs' Complaint as Exhibit "I").
— The First Article 78 Proceeding
On May 31, 2007, KYLES commenced an Article 78 proceeding in the nature of mandamus, in New York County Supreme Court, against Honorable Lebovits, and Honorable Wendt; also naming 736 RIVERSIDE DR., LLC, as a party Defendant, under Index No.: 105603/2007. Therein, by Order to Show Cause, returnable on June 22, 2007, KYLES sought to be heard on the merits of their claim for attorneys' fees, and for other relief.
( See copy of Order to Show Cause, annexed to the Motion by Defendants HEIBERGER et al., at Exhibit "E").
— The So-Ordered "Stipulation of Settlement" dated June 20, 2007 Prior to the return date of KYLES' Order to Show Cause, the parties engaged in settlement negotiations; and asked Judge Lebovits to assist them in settling their dispute. At a conference held on June 15, 2007, HART informed the Court that: "We are close to getting this thing settled"; "Judge, I'm asking for your assistance; . . . we need your [Lebovits] assistance"; and "We can sit down with the court and we can resolve this".
( See Affirmation by Maxwell Breed, Esq., dated Oct. 1, 2007, p. 5).
( See June 15, 2007 Lebovits Transcript, p. 50, annexed to the Motion by Defendants HEIBERGER et al., at Exhibit "O").
( See June 15, 2007 Lebovits Transcript, p. 55).
( See June 15, 2007 Lebovits Transcript, p. 59).
The settlement negotiations culminated in the Stipulation of Settlement, dated June 20, 2007, which is at the heart of the dispute in the instant action. The Stipulation of Settlement provides that the parties agreed that 736 RIVERSIDE DR., LLC, would pay attorneys' fees in the sum of $190,000 incurred in the 2003 non-payment case, as well as legal fees incurred up to June 20, 2007 in the 2006 non-payment case. Defendant HART withdrew as Counsel for WILLIAM KYLE, MARY KYLE, and KATHRYN GILBERT, with their consent. The parties also agreed to discontinue, "with prejudice", the Article 78 proceeding under Index No.: 105603/2007.
( See June 20, 2007 So-Ordered Stipulation of Settlement, annexed to Motion by Defendants HEIBERGER et al., at Exhibit "F", and HART's Motion).
(The parties also signed a separate stipulation to that effect, which was filed in the said Article 78 proceeding).
The June 20, 2007 Stipulation of Settlement was signed by: Defendant HART; Defendant McCOURT, (who represented Defendant 736 RIVERSIDE DR., LLC); Plaintiff WILLIAM KYLE (a law school graduate); and Defendant DUNLAP POLAT (an agent of the landlord 736 RIVERSIDE DR., LLC).
By July 2007, (shortly after the Stipulation was signed), KYLES had already retained their present attorney, ROBIN KYLE, (brother of WILLIAM KYLE), who made a motion in Housing Court, dated July 28, 2007, to vacate the June 20, 2007 Stipulation of Settlement. The Court denied that motion, by the Order, dated August 24, 2007; and no appeal was pursued.
( See copy of motion, annexed to the instant Motion by Defendants HEIBERGER et al., as Exhibit "H").
— The Second Article 78 Proceeding
In August 2007, KYLES commenced another Article 78 proceeding in the nature of mandamus, in Supreme Court, New York County, against Honorable Lebovits, which also named 736 RIVERSIDE DR., LLC, as a party Defendant, under Index No.: 110838/2007. By Order to Show Cause, returnable on August 14, 2007, KYLES again, essentially, sought to vacate the June 20, 2007 Stipulation of Settlement.
( See copy of Order to Show Cause, annexed to the Motion by Defendants HEIBERGER et al., at Exhibit "J").
The Article 78 petition was denied by Justice Herman Cahn, who decided that there was no basis in law, or fact, to vacate the subject Stipulation. ( Matter of Kyle v. Lebovits, 17 Misc 3d 1124A, 2007 NY Slip. Op. 52132U [NY Sup. Ct., Oct. 26, 2007]). Justice Cahn also sanctioned Robin Kyle, Esq., for knowingly engaging in frivolous conduct, including making factual and legal misrepresentations, and disrespecting two judges of the Housing Court. Justice Cahn's decision is final, having been unanimously affirmed by the Appellate Division, First Department in Matter of Kyle v. Lebovits, 58 AD3d 521 (1st Dept. 2009). The Court of Appeals recently denied leave to appeal in Kyle v. Lebovits, 2009 NY LEXIS 3471 (Sept. 8, 2009).
Plaintiffs' Unverified Complaint
KYLES filed their Complaint in the case at bar in September 2007, continuing to pursue their attempts to set aside the June 20, 2007 Stipulation of Settlement. The Complaint in the instant matter alleges two causes of action: "Tortious Inducement and Participation in Breach of Fiduciary Duty" against all Defendants; "Tortious Interference with Contractual Relations" against all Defendants except HART; and Plaintiffs seek "Punitive Damages." Plaintiffs failed to sign the Verifications annexed to the Complaint.
MOTIONS TO DISMISS :
It is well-established that, on a motion to dismiss, premised on CPLR 3211(a)(7): "Initially, the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail . . . When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." [emphasis added] Guggenheimer v. Ginzburg, 43 NY2d 268 (1977). See Rovello v. Orofino Realty, 40 NY2d 633 (1976).
With respect to dismissal pursuant to CPLR 3211(a)(1):
Dismissal of a complaint pursuant to CPLR 3211 (a) (1) is warranted where "the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Leon v Martinez, 84 NY2d 83, 88, 638 NE2d 511, 614 NYS2d 972 [1994]). In particular, where a written agreement (such as the lease in this case) unambiguously contradicts the allegations supporting a litigant's cause of action for breach of contract, the contract itself constitutes documentary evidence warranting the dismissal of the complaint pursuant to CPLR 3211 (a) (1 ), regardless of any extrinsic evidence or self-serving allegations offered by the proponent of the claim (see Excel Graphics Tech. v CFG/AGSCB 75 Ninth Ave., 1 AD3d 65, 69, 767 NYS2d 99 [2003], lv dismissed 2 NY3d 794, 814 NE2d 464, 781 NYS2d 292 [2004]). This follows from the bedrock principle that it is a court's task to enforce a clear and complete written agreement according to the plain meaning of its terms, without looking to extrinsic evidence to create ambiguities not present on the face of the document. [emphasis added]
150 Broadway NY Assocs., L.P. v. Bodner , 14 AD3d 1, 5-6 (1st Dept. 2004).
— "BREACH OF FIDUCIARY DUTY" CLAIM AGAINST DEFENDANT RONALD HART:
In the case at bar, KYLES essentially allege that their (prior) attorney, Defendant HART, breached his fiduciary duty to them by virtue of the fact that he settled the claim for attorneys' fees and withdrew from representing them — in accordance with the aforesaid June 20, 2007 Stipulation of Settlement.
"In order to establish a breach of fiduciary duty, a plaintiff must prove the existence of a fiduciary relationship, misconduct by the defendant, and damages that were directly caused by the defendant's misconduct." Kurtzman v. Bergstol , 40 AD3d 588 (2d Dept. 2007). "Where a cause of action or defense is based upon . . . breach of trust . . . the circumstances constituting the wrong shall be stated in detail." CPLR 3016
It is well-established that the" "but for" standard of causation, applicable to a legal malpractice claim, [also applies] to the claim for breach of fiduciary duty" where clients assert a claim for breach of fiduciary duty against their former attorney. Weil, Gotshal Manges, LLP v. Fashion Boutique of Short Hills, Inc , 10 AD3d 267 , 272 (1st Dept. 2004).
We have never differentiated between the standard of causation requested for a claim of legal malpractice and one for breach of fiduciary duty in the context of attorney liability. The claims are coextensive. Under New York law, to establish the elements of proximate cause and actual damages, where the injury is the value of the claim lost, the client must meet the "case within a case" requirement, demonstrating that "but for" the attorney's conduct the client would have prevailed in the underlying matter or would not have sustained any ascertainable damages. [emphasis added]
Weil, Gotshal Manges, LLP v. Fashion Boutique of Short Hills, Inc., supra, 10 AD3d at 271-72. Thus, irrespective of how the claim is labeled or denominated in the complaint, "to recover under a claim for damages against an attorney arising out of the breach of the attorney's fiduciary duty, the plaintiff must establish the but for' element of malpractice." Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman Dicker , 56 AD3d 1 (1st Dept. 2008).
In addition, essential to a breach of fiduciary duty claim against an attorney, as well as to a legal malpractice claim, "is proof that the acts of an attorney proximately caused compensable damages. . . . If there are no damages, there can be no cause of action." Zletz v. Outten Golden, LLP , 18 AD3d 322 , 324 (1st Dept. 2005).
ANALYSIS:
Applying such principals, KYLES have not alleged facts showing that they were damaged by HART's conduct.
Not only were KYLES not damaged, but they actually benefitted from the settlement of the claim for attorneys' fees. KYLES readily concede that they owed HART $426,054, for hundreds of hours of legal services he performed for them over the course of five years; and that they believed that HART performed his duties "with superior legal skill". Despite acknowledging HART's superior skills, KYLES unabashedly failed to pay HART even a penny.
( See Complaint ¶ 20).
( See Complaint ¶ 55).
This is so even though it is alleged, without dispute, that the Plaintiffs had, or should have had, the means to pay HART, since all three Plaintiffs hold advanced degrees; WILLIAM KYLE is a law school graduate; and Plaintiffs were "living a rent-free existence". ( See Nazrali Reply Affirmation, dated Jan. 30, 2008, ¶ 15-16, 20-22).
Plaintiffs acknowledge that the claim for attorneys' fees arises under RPL § 234: "Tenants' right to recover attorneys' fees in actions or summary proceedings arising out of leases of residential property", which provides as follows:
Whenever a lease of residential property shall provide that in any action or summary proceeding the landlord may recover attorneys' fees and/or expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease, or that amounts paid by the landlord therefor shall be paid by the tenant as additional rent, there shall be implied in such lease a covenant by the landlord to pay to the tenant the reasonable attorneys' fees and/or expenses incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease, and an agreement that such fees and expenses may be recovered as provided by law in an action commenced against the landlord or by way of counterclaim in any action or summary proceeding commenced by the landlord against the tenant. Any waiver of this section shall be void as against public policy. [emphasis added]
To recover attorneys' fees from their landlord in accordance with RPL § 234, KYLES participated in the relentless motion practice in the Housing Court.
Under the circumstances, it was entirely appropriate for the parties to engage in settlement negotiations to resolve this issue; to seek Judge Lebovits assistance; and to settle the matter in accordance with the June 20, 2007 Stipulation of Settlement.
The validity of the terms of the June 20, 2007 Stipulation, that was So-Ordered, was upheld by Judge Lebovits, in his decision dated August 24, 2007. In particular, Judge Lebovits decided that HART did not, in fact, violate his fiduciary duty, holding that KYLES had "accepted the stipulation [in order] to get the $190,000, not because prior Counsel [HART] violated his obligation of undivided loyalty."
( See Lebovits August 24, 2007 decision, p. 5).
Also, Judge Lebovits held that the Stipulation was made with the consent of KYLES, and was enforceable, stating: "Kyle wanted the Stipulation, as he told the court twice on June 20, [2007]. He and his new counsel, his brother, changed their mind to get more money now that petitioner [the landlord] has paid Kyle, or him through his lawyer, $190,000."
In addition, Justice Cahn decided that there was no basis in law, or fact, to vacate the subject June 20, 2007 Stipulation. See Matter of Kyle v. Lebovits, 17 Misc 3d 1124A, 2007 NY Slip. Op. 52132U (NY Sup. Ct., Oct. 26, 2007, by Hon. Cahn), aff'd Matter of Kyle v. Lebovits , 58 AD3d 521 (1st Dept. 2009), leave to appeal denied Kyle v. Lebovits, 2009 NY LEXIS 3471 (Sept. 8, 2009). Justice Cahn came to his conclusion after extensive analysis of KYLES' various arguments, all of which need not be repeated in this decision.
It is significant, for example, that Justice Cahn held that the subject June 20, 2007 Stipulation was a fair, and uncoerced, settlement of the attorneys' fees issue, made with KYLES' consent and knowledge. Justice Cahn was disturbed by KYLES' unsubstantiated, barren contentions that an "unfair settlement of the attorney fee issue" was coerced. In Justice Cahn's words: "There is nothing in the record suggesting that petitioners [KYLES] were forced to accept $190,000 in legal fees from their landlord for settlement of their outstanding legal fee claim. . . . This is not a situation where an attorney was allegedly acting without the knowledge and consent of his clients. Judge Lebovits specifically questioned . . . William Kyle, who was present in court, about whether he wanted to settle". Matter of Kyle v. Lebovits, 17 Misc 3d 1124A, 2007, (NY Sup. Ct., Oct. 26, 2007, by Hon. Cahn).
What is also most revealing is the dialogue from the settlement conference before Judge Lebovits on June 20, 2007:
Justice Lebovits: Is this what we want to do?
William Kyle: Yes . . . this is what we're going to do. I want to do it. [emphasis added] . . .
( See June 20, 2007 Lebovits Transcript, p. 56-57).
Justice Lebovits: Tell me what you want to do.
William Kyle: Don't start tearing up everything. This is fine. . . . we're settling it. [emphasis added]
( See June 20, 2007 Lebovits Transcript, p. 60).
In this regard, it is well-established that:
Under the doctrine of collateral estoppel, . . . plaintiff should not be allowed in this action to raise any of the issues he unsuccessfully litigated in his prior CPLR article 78 proceeding. Collateral estoppel, or issue preclusion, "precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party, whether or not the tribunals or causes of action are the same" (Ryan v New York Tel. Co., 62 NY2d 494, 500; see also, Burgos v Hopkins, supra, 14 F3d, at 792). The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action (Ryan v New York Tel. Co., supra, at 500-501). "[T]he burden rests upon the proponent of collateral estoppel to demonstrate the identicality and decisiveness of the issue, while the burden rests upon the opponent to establish the absence of a full and fair opportunity to litigate the issue in [the] prior action or proceeding" (id., at 501). [emphasis added]
Parker v. Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 (1999). Accordingly, KYLES are estopped from now re-litigating all the issues that were previously resolved. In the decisions rendered by Judge Lebovits and Justice Cahn, the Courts held, among other things, that HART did not violate his obligation of undivided loyalty; and that the Stipulation is valid — since it was fair, uncoerced, and made on consent of KYLES. It is evident that KYLES had a full and fair opportunity to previously litigate these issues in the Housing Court and in the New York County Supreme Court. The parties had made numerous court appearances, oral arguments, submitted voluminous papers; and pursued an (unsuccessful) appeal.
HART's Counsel aptly summarizes: "Plaintiffs unquestionably benefitted from Mr. Hart's representation and were only too happy to be relieved of their financial obligation to him by saving years of legal fees [which were] paid by their landlord. Plaintiffs were clearly grateful for their windfall, while at the same time retaining a judgment against the landlord in the amount of $21,373.40 plus interest, which served as a set-off to their future rent obligations, not to mention he landlord's obligation to fix and repair the apartment. It should likewise be noted that there was a seamless transition of legal representation from Defendant Hart to attorney Robin Kyle . . . [who is] William Kyle's brother ." ( See Nazrali Reply Affirmation, dated Jan. 30, 2008, ¶ 25-26).
Similarly, Counsel for Defendants HEIBERGER et al. appropriately observed: "The $190,000 provided for in the stipulation was to their [KYLES'] benefit as that payment served to extinguish a massive debt that they [KYLES] owed to Defendant Hart." ( See Affirmation by Maxwell Breed, Esq., dated Oct. 1, 2007, p. 17).
In addition, KYLES made no showing that "but for" HART's withdrawal as their Counsel, KYLES would have prevailed in the 2006 non-payment case in the Housing Court. The outcome of that case is not even part of the pleadings, or Motion papers, herein; and so it is not known whether, or not, KYLES prevailed. KYLES have been adequately represented by their present Counsel, Robyn Kyle, Esq., since July 2007, within a month of the subject Stipulation of Settlement. The trial of the 2006 non-payment case, in the Housing Court, was sufficiently adjourned to, at least, January 2008, by which time KYLES and their new attorney would have had sufficient opportunity to prepare. In addition, due to the strains in the attorney-client relationship — exacerbated by KYLES' failure to pay HART attorneys' fees he earned for 5 years of contentious litigation — it appears that KYLES did not wish to continue to be represented by HART.
(In this regard, it is noted that the trial was adjourned as follows: By his August 13, 2007 and August 24, 2007 Orders, Honorable Lebovits had adjourned the trial to October 9, 2007. Later, by her Order, dated January 11, 2008, Honorable Jean Schneider, JHC, states that she had initially adjourned the trial to November 13, 2007, and she further adjourned it to January 29, 2008).
Where, as here, plaintiffs do not sufficiently allege the elements of the claim, dismissal is properly granted — even if there were allegations of ethical violations, and negligence. For example, in a case where an attorney's "sexual encounters with plaintiff [his client] clearly constituted ethical violations (see Code of Professional Responsibility DR 5-111 [b] [3] [22 NYCRR 1200.29-a (b)(3)]; see also Code of Professional Responsibility DR 1-102 [a] [7] [ 22 NYCRR 1200.3 (a)(7)])," the Court held that" "[t]he violation of a disciplinary rule does not, without more, generate a cause of action" (Schwartz v Olshan Grundman Frome Rosenzweig, 302 AD2d 193, 199, 753 NYS2d 482). . . . Because plaintiff has not provided any factual information showing that defendant was negligent in his legal representation, that she suffered a loss related to such alleged negligence or that she suffered recoverable damages at all , Supreme Court appropriately granted defendant's motion . . . dismissing the complaint ." [emphasis added] Guiles v. Simser , 35 AD3d 1054 (3d Dept. 2006).
Likewise, in a recent First Department case, the Court held that: "The proposed fiduciary breach claim lacks merit in that it fails to allege facts, rather than conclusions, to support the element of "but for" causation . . . and was therefore properly rejected . . . even if, arguendo, the alleged conduct involved ethical violations . . . The damages sought are speculative or otherwise not recoverable (see Postel v Jaffe Segal, 237 AD2d 127, 654 NYS2d 25)." Cosentino v. Sullivan Papain Block McGrath Cannavo, P.C. , 47 AD3d 599 (1st Dept. 2008). Also, a plaintiffs "will not be heard to complain that [the] result was not achieved in the precise manner [they] would have preferred." Zarin v. Reid Priest, 184 AD2d 385, 387 (1st Dept. 1992).
— "TORTIOUS INDUCEMENT OF BREACH OF FIDUCIARY DUTY" and "TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS" CLAIMS AGAINST THE REMAINING DEFENDANTS :
It is well-established that, to state a claim for "aiding and abetting the breach of fiduciary duty, . . . plaintiff must plead a breach of fiduciary duty, that the defendant knowingly induced or participated in the breach, and damages resulting therefrom." [emphasis added] Bullmore v. Ernst Young Cayman Is. , 45 AD3d 461 (1st Dept. 2007). Kaufman v. Cohen, 307 AD2d 113, 118 (1st Dept. 2003).
Also, the Court of Appeals has established that:
The tort of inducement of breach of contract, now more broadly known as interference with contractual relations, consists of four elements: (1) the existence of a contract between plaintiff and a third party; (2) defendant's knowledge of the contract; (3) defendant's intentional inducement of the third party to breach or otherwise render performance impossible; and (4) damages to plaintiff (Israel v Wood Dolson Co., 1 NY2d 116, 120; see generally, Restatement [Second] of Torts § 766; 4 Lee and Lindahl, Modern Tort Law § 45.02, at 20 [rev ed]). Since damage is an essential element of the tort, the claim is not enforceable until damages are sustained. [emphasis added]Kronos, Inc. v. AVX Corp., 81 NY2d 90, 94 (1993).
For the reasons already discussed, and there being no damages suffered by KYLES, the aforesaid causes of action against the remaining Defendants, HEIBERGER ASSOCIATES, P.C., LARRY McCOURT, DUNBAR POLAT, 736 RIVERSIDE DR., LLC, CAPIN AND ASSOCIATES, are, also, properly dismissed.
Moreover, the parties' conduct in settling KYLES' RPL § 234 claim for attorneys' fees is more properly characterized as being a commendable good faith effort to compromise a difficult issue in a reasonable fashion, rather than as being something in the nature of a tort.
In this regard, we note that: "Stipulations of settlement are favored by the courts. . . ."This is all the more so in the case of open court stipulations . . . within CPLR 2104 , where strict enforcement not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process"." Nigro v. Nigro , 44 AD3d 831 (2d Dept. 2007).
CPLR 2104 provides that an agreement between parties or their attorneys relating to any matter in an action is binding upon a party if it is in a writing subscribed by him or his attorney, or reduced to the form of an order, or made between counsel in open court.
Under the circumstances, since Plaintiffs have no viable causes of action against Defendants, Plaintiffs' Complaint is dismissed. The parties' Stipulation, which has been upheld, constitutes documentary evidence warranting dismissal of the Plaintiffs' Complaint pursuant to CPLR 3211(a)(1).
PUNITIVE DAMAGES
Plaintiffs' claim for punitive damages is insufficient as a matter of law, since a punitive damages claim is not viable, where, as here:
The plaintiffs failed to allege facts demonstrating that the defendants' conduct was so outrageous as to evince a high degree of moral turpitude and showing such wanton dishonesty as to imply a criminal indifference to civil obligations (see, Walker v Sheldon, 10 NY2d 401, 405).
Zarin v. Reid Priest, 184 AD2d 385, 388 (1st Dept. 1992).
VENUE
Defendants seek relief in the alternative, namely, in the event that this action is not dismissed, that venue be changed to New York County, pursuant to CPLR 510(3), for the convenience of witnesses. These portions of Defendants' motions are deemed moot, or effectively rendered moot, because this action is dismissed. Such relief would otherwise be denied since venue is proper in the Bronx Supreme Court. ( See CPLR 503[a]). Defendant HART resided in the Bronx at the time of the commencement of this action. Also, Movants have not made a sufficient showing for change of venue pursuant to CPLR 510(3), in accordance with the criteria set forth in the leading case of O'Brien v. Vassar Bros. Hosp., 207 AD2d 169, 173 (2d Dept 1995).
Accordingly, the Motions by Defendants, HEIBERGER ASSOCIATES, P.C., LARRY McCOURT, DUNBAR POLAT, 736 RIVERSIDE DR., LLC, and CAPIN AND ASSOCIATES, and the Motion by Defendant HART, are granted as set forth herein; and Plaintiffs' Complaint is dismissed. That part of Defendants' Motion which seeks sanctions is denied. "We instead emphasize the need for finality and an end to litigation." Aurnou v. Greenspan, 182 AD2d 523 (1st Dept. 1992).
This constitutes the decision and order of this Court.