Summary
affirming dismissal of tortious interference counterclaim on a motion to dismiss because of "the factual allegations demonstrating that [plaintiff] had a normal economic interest in interfering"
Summary of this case from Savage v. Galaxy Media & Mktg. Corp.Opinion
2011-10-11
STEINER SPORTS MARKETING, INC., Plaintiff–Respondent,v.Steven WEINREB, Defendant–Appellant.
Kaufmann Gildin Robbins & Oppenheim LLP, New York (Daniel Gildin of counsel), for appellant. The Roth Law Firm, PLLC, New York (Richard A. Roth of counsel), for respondent.
Kaufmann Gildin Robbins & Oppenheim LLP, New York (Daniel Gildin of counsel), for appellant.
The Roth Law Firm, PLLC, New York (Richard A. Roth of counsel), for respondent.
Order, Supreme Court, New York County (Bernard J. Fried, J.), entered June 29, 2010, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion to dismiss defendant's counterclaims for tortious interference with prospective economic relationships and intentional infliction of emotional distress, unanimously modified, on the law and the facts, to the extent of granting defendant leave to replead the tortious interference counterclaim, and otherwise affirmed, with costs.
In response to plaintiff Steiner Sports's action to enforce a covenant not to compete, allegedly signed by defendant Weinreb, and to prohibit Weinreb from working for other employers in the sports marketing industry, Weinreb asserted counterclaims for tortious interference with prospective economic relationships and intentional infliction of emotional distress. Weinreb alleged that Steiner Sports had caused one of its clients, The Nelson Group, to rescind an offer of employment to him, unless Steiner Sports consented to the employment in writing, for the sole purpose of harming him. Weinreb also alleged that “Steiner Sports representatives” had falsely told “other potential employers” that he was subject to an extensive post-termination covenant not to compete, and had threatened litigation if any of those potential employers hired Weinreb.
The court properly dismissed the counterclaims under CPLR 3211(a)(7). The allegation that “Steiner Sports representatives” interfered with his prospective relationships with “other potential employers” is conclusory and unsupported by specific facts alleging any potential relationships ( see Phoenix Capital Invs. LLC v. Ellington Mgt. Group, L.L.C., 51 A.D.3d 549, 551, 859 N.Y.S.2d 46 [2008]; Learning Annex Holdings, LLC v. Gittelman, 48 A.D.3d 211, 850 N.Y.S.2d 422 [2008] ). Weinreb's assertion that Steiner Sports interfered with his prospective employment with The Nelson Group for the sole purpose of harming him is undermined by the factual allegations demonstrating that Steiner Sports had a normal economic interest in interfering with the prospective employment ( see Advanced Global Tech., LLC v. Sirius Satellite Radio, Inc., 44 A.D.3d 317, 843 N.Y.S.2d 220 [2007] ). Furthermore, the allegation that plaintiff's chief executive officer requested and convinced The Nelson Group to rescind the offer does not constitute the kind of wrongful or culpable conduct required to state a claim for tortious interference with prospective economic relationships ( see Carvel Corp. v. Noonan, 3 N.Y.3d 182, 190–191, 785 N.Y.S.2d 359, 818 N.E.2d 1100 [2004] ).
The court did not abuse its discretion in declining to grant Weinreb leave to replead, given Weinreb's inability to state what additional facts would be pleaded. However, since an undisputed fact emerged after the filing of the counterclaim, namely that Steiner Sports had submitted a fabricated agreement containing a one-year covenant not to compete in support of its complaint, we grant leave to replead the counterclaim to the extent it is based on knowing misrepresentations of an extensive non-compete agreement ( see Freedman v. Pearlman, 271 A.D.2d 301, 305, 706 N.Y.S.2d 405 [2000] ). Repleading would neither surprise nor prejudice Steiner Sports, as it has admitted to the misconduct, and the tortious interference
claim, as repleaded, would not be “palpably insufficient or patently devoid of merit” ( MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499, 499, 901 N.Y.S.2d 522 [2010] ).
Weinreb failed to allege facts sufficient to support a claim for intentional infliction of emotional distress ( see Howell v. New York Post Co., 81 N.Y.2d 115, 121–122, 596 N.Y.S.2d 350, 612 N.E.2d 699 [1993] ). Leave to replead this counterclaim is unwarranted because even if Steiner Sports used a fabricated agreement to interfere with Weinreb's prospective employment with The Nelson Group, such conduct is not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” ( Murphy v. American Homes Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 [1983] [internal quotation marks and citation omitted] ).
We have considered the remaining contentions and find them unavailing.