Opinion
6940 6941N Index 651602/12
06-21-2018
PEOPLE'S CAPITAL AND LEASING CORP., Plaintiff–Respondent, v. 1 800 POSTCARDS, INC., et al., Defendants–Appellants.
Law Offices of Michael S. Doran, LLC, New York (Michael S. Doran of counsel), for appellants. Moritt Hock & Hamroff LLP, Garden City (Alexander D. Widell of counsel), for respondent.
Law Offices of Michael S. Doran, LLC, New York (Michael S. Doran of counsel), for appellants.
Moritt Hock & Hamroff LLP, Garden City (Alexander D. Widell of counsel), for respondent.
Manzanet–Daniels, J.P., Gische, Andrias, Kapnick, Kern, JJ.
Orders, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered May 30, 2017, which, to the extent appealed from as limited by the briefs, denied defendants' motion for leave to amend the answer to add counterclaims for malicious prosecution and tortious interference with contract, and granted plaintiff's motion to strike defendants' jury demand, unanimously affirmed, without costs.
We affirm the denial of defendants' motion for leave to amend. While malicious prosecution claims can be premised on civil proceedings (see Thomas v. G2 FMV LLC, 147 A.D.3d 700, 48 N.Y.S.3d 358 [1st Dept. 2017] ; Facebook, Inc. v. DLA Piper LLP [U.S.], 134 A.D.3d 610, 23 N.Y.S.3d 173 [1st Dept. 2015], lv denied 28 N.Y.3d 903, 2016 WL 4820902 [2016] ), the proposed malicious prosecution counterclaim is time-barred. The underlying action was dismissed in defendants' favor more than one year before defendants moved for leave to amend (see CPLR 215[3] ; Syllman v. Nissan, 18 A.D.3d 221, 794 N.Y.S.2d 351 [1st Dept. 2005] ). Contrary to defendants' arguments, under the circumstances of this case, neither CPLR 203(d) nor CPLR 203(f) avails them. The proposed counterclaim fails, moreover, due to defendants' failure to adequately allege special damages ( Engel v. CBS, Inc., 93 N.Y.2d 195, 205, 689 N.Y.S.2d 411, 711 N.E.2d 626 [1999] ).
In support of the proposed claim for tortious interference with contract, defendants failed to allege a causal connection between plaintiff's allegedly tortious conduct—nondisclosure of its side agreement with Mitsubishi Lithographic Presses (MLP)—and MLP's alleged breach of its purchase agreement with defendants (see White Plains Coat & Apron Co., Inc. v. Cintas Corp., 8 N.Y.3d 422, 426, 835 N.Y.S.2d 530, 867 N.E.2d 381 [2007] ).
Defendants waived trial by jury in the agreement at issue. Their efforts to sever the waiver provision while otherwise enforcing what they claim is a valid agreement are unavailing (see Sherry Assoc. v. Sherry–Netherland, Inc., 273 A.D.2d 14, 15–16, 708 N.Y.S.2d 105 [1st Dept. 2000] ).
We have considered defendants' remaining arguments and find them unavailing.