Opinion
No. 2900.
February 28, 2008.
Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered May 25, 2006, which, to the extent appealed from as limited by the briefs, granted Plaintiffs motion for summary judgment as to liability for prima facie tort, unanimously reversed, on the law, without costs, and the motion denied.
Richard W. Babinecz, New York (Frank A. Lisi of counsel), for Consolidated Edison Company of New York, Inc., appellant.
Kirkland Ellis LLP, New York (Joseph Serino, Jr. of counsel), for Empire City Subway Co., Ltd., appellant.
Before: Mazzarelli, J.P., Andrias, Saxe, Gonzalez and Sweeny, JJ.
The court improperly inferred disinterested malevolence, as a matter of law, from defendants' alleged breach of their common-law duty to remove the overhead wires that plaintiff claims were interfering with its public works contract with the City of New York. Defendants' proffered justification for their failure to remove the subject wires, i.e., that in numerous locations Plaintiffs work had been completed before defendants received the City's orders directing them to relocate the wires, raised a triable issue whether the failure to remove the wires was motivated solely by a desire to harm plaintiff ( see Burns Jackson Miller Summit Spitzer v Lindner, 59 NY2d 314, 333; LIM Ninety CM Corp. v 2431 Broadway Realty Co., 170 AD2d 373).