Summary
affirming that the lower court properly declined to dismiss a counterclaim for tortious interference with a contract because defendant alleged that the instant action was meant to render contract performance impossible
Summary of this case from Camelot Si, LLC v. ThreeSixty Brands Grp.Opinion
2012-11-13
ROCKWELL GLOBAL CAPITAL, LLC, Plaintiff–Appellant, v. SOREIDE LAW GROUP, PLLC, et al., Defendants–Respondents, Salvatore Clark, Defendant.
Gusrae Kaplan Nusbaum PLLC, New York (Brian D. Graifman of counsel), for appellant. Law Offices of John E. Lawlor, Mineola (John E. Lawlor and Ian Y. Park of counsel), for respondents.
Gusrae Kaplan Nusbaum PLLC, New York (Brian D. Graifman of counsel), for appellant. Law Offices of John E. Lawlor, Mineola (John E. Lawlor and Ian Y. Park of counsel), for respondents.
GONZALEZ, P.J., SAXE, CATTERSON, ACOSTA, GISCHE, JJ.
Order, Supreme Court, New York County (Eileen Bransten, J.), entered May 29, 2012, which denied plaintiff's motion to dismiss the counterclaims alleged by defendants Soreide Law Group, PLLC, Lars K. Soreide, and Frederick J. Seely's for tortious interference with contract (first), tortious interference with business relations (second), tortious interference with business expectancy (third) and malicious prosecution (fourth), unanimously modified, on the law, to grant the motion to the extent of dismissing the second, third, and fourth counterclaims, and otherwise affirmed, without costs.
The court properly declined to dismiss the counterclaim for tortious interference with contract. The record shows that plaintiff knew that defendants had entered into various contracts with plaintiff's former customers for the purpose of commencing arbitration proceedings to recover lost investments. Defendants alleged that without justification, plaintiff commenced the instant action in order to render defendants' representation of their clients impossible ( see generally Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94, 595 N.Y.S.2d 931, 612 N.E.2d 289 [1993] ).
However, we find that dismissal of the counterclaims for tortious interference with business relations and with business expectancy is warranted. Defendants have properly alleged that plaintiff used wrongful means by commencing this action to interfere with defendants' business relations with their clients, who were former customers of plaintiff ( see Guard–Life Corp. v. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 191, 428 N.Y.S.2d 628, 406 N.E.2d 445 [1980] ). However, defendants have not alleged that plaintiff's conduct was directed at the clients with whom defendants have or sought to have a relationship ( see Carvel Corp. v. Noonan, 3 N.Y.3d 182, 192, 785 N.Y.S.2d 359, 818 N.E.2d 1100 [2004] ).
The counterclaim for malicious prosecution must also be dismissed, since defendants failed to allege the termination of a prior proceeding in their favor, a required element of the claim ( see generally Broughton v. State, 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 335 N.E.2d 310 [1975],cert. denied423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 [1975];see Sasso v. Corniola, 154 A.D.2d 362, 363, 545 N.Y.S.2d 839 [2d Dept.1989] ).