Opinion
Index No. 504529/2021 Mot. Seq. No. 1 NYSCEF DOC. No. 9
10-06-2022
JOSEPH PAUKMAN, Plaintiff, v. IRA THOMAS, ESQ., Defendants,
Unpublished Opinion
DECISION AND ORDER
HON. RICHARD VELASQUEZ JUSTICE.
The following papers NYSCEF Doc #'s toread on this motion:
Papers
NYSCEF DOC NO.'s
Notice of Motion/Order to Show Cause
1
Affidavits (Affirmations) Annexed__
3-24
Opposing Affidavits (Affirmations)__
26
Reply Affidavits__
28
After having come before the Court and the Court having heard Oral Argument on December 1, 2021 the court finds as follows:
Defendant moves for an Order pursuant to Rule 3211(a)(7) of the CPLR, dismissing plaintiffs action as failing to state a valid cause of action. Plaintiff opposes the same.
Pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Morone v. Morone, 50 N.Y.2d 481, 484, 429 N.Y.S.2d 592, 413 N.E.2d 1154; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634, 389 N.Y.S.2d 314, 357 N.E.2d 970). "The criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17; Rovello v. Orofino Realty Co., 40 N.Y.2d at 636, 389 N.Y.S.2d 314, 357 N.E.2d 970). "[B]are legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on such a motion" (Palazzolo v. Herrick, Feinstein, LLP, 298 A.D.2d 372, 751 N.Y.S.2d 401). If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211(a)(7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action (see McGuire v. Sterling Doubleday Enters., LP, 19 A.D.3d 660, 661, 799 N.Y.S.2d 65). Although a court should sparingly grant a motion to dismiss for failure to state a cause of action, where the affidavits submitted in support of the motion establish conclusively that the plaintiff has no cause of action, the court should grant the motion. See Doe v Ascend Charter Schs., 181 A.D.3d 648 [2d Dept 2020], citing Sokol v Leader, 74 A.D.3d at 1182 [2d Dept 2010], quoting Lawrence v Graubard Miller, 11 N.Y.3d 588, 595, 901 N.E.2d 1268, 873 N.Y.S.2d 517 [2008], quoting Rovello v Orofino RealtyCo., 40 N.Y.2d at 636 [1976]. See also, Porat v Rybina, 177 A.D.3d 632 [2d Dept 2019].
In the present case, plaintiff alleges a cause of action sounding in tortious interference with contractual relation. Tortuous interference with contractual relations has been a viable cause of action in New York. E.g., SC Posner Co. v. Jackson, 223 N.Y. 325, 332 (1918); Lamb v. Cheney &Son, 227 N.Y. 418, 421 (1920). It occurs when a business or individual who is not a party to a contract intentionally and without justifiable cause disrupts a business relationship formed by a contract. Lama Holding v. Smith Barney, 88 N.Y.2d 413, 424 (1996). To establish tortuous interference with a contract under New York law, a plaintiff must show four requisite elements, (1) the existence of a valid and enforceable contract between plaintiff and another; (2) defendant's awareness of the contractual relationship; (3) defendant's intentional inducement of a breach of the contract (and a subsequent breach by the other caused by defendant's wrongful conduct); and (4) damages. See, e.g., Nero v Fiore, 165 A.D.3d 823 [2d Dept 2018]; Foster v Churchill, 87 N.Y.2d 744, 749-50 [1996]; Israel v Wood Dolson Co., 1 N.Y.2d 116, 120 [1956], See e.g., NBT Bancorp v Fleet/Norstar Fin. Group, 87 N.Y.2d 614 [1996]) "there is no liability in tort with respect to an unenforceable contract-here a contract terminable at the will of either party unless the means employed by defendant-competitor were wrongful." Id. at 621.
In the present case, it is undisputed that due to a falling out between Plaintiff and his client at the time, Sunny Barkats, Plaintiff filed a "letter motion" with the Federal Court on August 20, 2019 seeking to withdraw as attorney or record (See SDNY CMECF Document 166, attached as "Exhibit D, NYSCEF, Doc 9" . on August 29, 2019, Plaintiffs motion to withdraw as Barkats counsel was granted by the Federal Court Judge (See SDNY CMECF Document 174, attached as "Exhibit G, NYSCEF Doc 12 Said withdrawal "refutes the plaintiffs conclusory allegations, and conclusively disposes of the plaintiffs claims as a matter of law." Nero v Fiore, supra, at 826, citing Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 774 N.E.2d 1190, 746 N.Y.S.2d 858 [2002]; Held v Kaufman, 91 N.Y.2d 425, 430-431, 694 N.E.2d 430, 671 N.Y.S.2d 429 [1998]).
Accordingly, the documentary proof establishes that there was no breach of contract. Instead, plaintiff took the initiative to terminate his contract with his client. Thus, the action fails to state a cause of action because an essential element of the cause is not satisfied there is no contract breach. Therefore, defendant's motion to dismiss for failure to state a cause of action is hereby granted. This matter is hereby dismissed.
This constitutes the Decision/Order of the court.