Summary
affirming lower court's dismissal of cause of action for tortious interference "since plaintiffs' allegation of 'but for' causation is conclusory"
Summary of this case from Moyal v. Tripost Capital Partners, LLCOpinion
5242 Index 652669/12
04-03-2018
BGC PARTNERS, INC., et al., Plaintiffs–Appellants–Respondents, v. AVISON YOUNG (CANADA) INC., et al., Defendants–Respondents–Appellants.
Emily Milligan, New York, for appellants-respondents. Kirkland & Ellis LLP, New York (Nathaniel J. Kritzer of counsel), for respondents-appellants.
Emily Milligan, New York, for appellants-respondents.
Kirkland & Ellis LLP, New York (Nathaniel J. Kritzer of counsel), for respondents-appellants.
Webber, J.P., Oing, Singh, Moulton, JJ.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered July 18, 2016, which granted defendants' motion to dismiss the causes of action for tortious interference with contractual relations and prospective business relations, conspiracy, aiding and abetting breach of fiduciary duty, and unjust enrichment, and denied the motion to dismiss the causes of action for aiding and abetting breach of the duty of fidelity, theft of trade secrets, and injunctive relief, unanimously modified, on the law, to grant the motion as to the theft of trade secrets, aiding and abetting breach of the duty of fidelity and injunctive relief causes of action, and otherwise affirmed, the Court is directed the enter judgment accordingly, without costs.
The cause of action for tortious interference with the Nevada and South Carolina agreements was correctly dismissed since plaintiffs' allegation of "but for" causation is conclusory (see Cantor Fitzgerald Assoc. v. Tradition N. Am. , 299 A.D.2d 204, 749 N.Y.S.2d 249 [1st Dept. 2002], lv denied 99 N.Y.2d 508, 757 N.Y.S.2d 819, 787 N.E.2d 1165 [2003] ). In support of the cause of action for tortious interference with the broker agreements and the cause of action for tortious interference with prospective business relations, plaintiffs failed to allege interference by wrongful means (see Guard–Life Corp. v. Parker Hardware Mfg. Corp. , 50 N.Y.2d 183, 193–194, 428 N.Y.S.2d 628, 406 N.E.2d 445 [1980] ). Plaintiffs' arguments addressed to the cause of action for aiding and abetting breach of fiduciary duty are unpreserved and in any event unavailing, since no fiduciary relationship arises from an employment relationship (see Wilson v. Dantas , 29 N.Y.3d 1051, 1064, 58 N.Y.S.3d 286, 80 N.E.3d 1032 [2017] ). The relationship between the parties is too attenuated to support a claim for unjust enrichment (see Sperry v. Crompton Corp. , 8 N.Y.3d 204, 215–216, 831 N.Y.S.2d 760, 863 N.E.2d 1012 [2007] ).
The cause of action for theft of trade secrets should be dismissed since in the circumstances the means by which defendants allegedly lured the brokers away from nonparty Grubb & Ellis, i.e., offering them competitive compensation, are not wrongful or improper (cf. Schroeder v. Pinterest Inc. , 133 A.D.3d 12, 28, 17 N.Y.S.3d 678 [1st Dept. 2015] [company officer gave confidential and proprietary information to competitor]; Guard–Life Corp. , 50 N.Y.2d at 191, 428 N.Y.S.2d 628, 406 N.E.2d 445 [wrongful means include "fraud or misrepresentation, ... and some degrees of economic pressure; they do not, however, include persuasion alone although it is knowingly directed at interference with the contract"] ).
Since the offer of competitive compensation is not wrongful or improper, we also dismiss plaintiffs cause of action for aiding and abetting breach of the duty of fidelity ( Kaufman v. Cohen , 307 A.D.2d 113, 125–126, 760 N.Y.S.2d 157 [1st Dept. 2003] [A party may be held liable for aiding and abetting only when they provide substantial assistance to the primary violator. "Substantial assistance occurs when a defendant affirmatively assists, helps conceal or fails to act when required to do so, thereby enabling the breach to occur"] ). Plaintiffs have not alleged any other means in which defendants substantially assisted the breach other than by offering competitive compensation.
We have considered the parties' remaining arguments for affirmative relief and find them unavailing.
The Decision and Order of this Court entered herein on December 14, 2017 ( 156 A.D.3d 531, 67 N.Y.S.3d 588 [1st Dept. 2017] ) is hereby recalled and vacated (see M–257 decided simultaneously herewith).