Opinion
December 12, 1975
Appeal from the Steuben Supreme Court.
Present — Moule, J.P., Cardamone, Simons, Goldman and Witmer, JJ.
Order unanimously reversed, without costs, and motion granted. Memorandum: Plaintiffs appeal from an order of Special Term which denied their motion to amend their complaint to allege a sixth cause of action against defendants. The sixth cause of action in plaintiffs' original complaint was dismissed and the dismissal was affirmed on appeal ( 45 A.D.2d 823) because it improperly alleged anticipated acts of defendants and the prospective damages which would flow therefrom in an action to recover upon the theory of prima facie tort (see Rager v McCloskey, 305 N.Y. 75, 81; Brandt v Winchell, 286 App. Div. 249, 251). The cause of action now proposed in the amended complaint alleges that plaintiffs were the tenant of defendants under a long-term lease; that, contrary to the agreement of the parties, defendants built a new store adjacent to the demised premises and leased it to a competitor of plaintiffs and that defendants permitted an A P store to vacate premises next to plaintiffs and lease premises next to plaintiffs' competitor; that said acts were done deliberately and maliciously and as part of a general plan solely for the purpose of damaging plaintiffs in the conduct of their business and that plaintiffs have in fact suffered special damages of $400,000 in sales, profits and good will. The amended complaint states a cause of action in prima facie tort (North Shore Bottling Co. v C. Schmidt Sons, 22 N.Y.2d 171; Albemarle Theatre v Bayberry Realty Corp., 27 A.D.2d 172). Defendants allege that the proposed amendment is barred because served without leave of the court after dismissal of the sixth cause of action in the original complaint (CPLR 3211, subd [e]). That section prohibits repleading without leave of the court granted upon application made at the time of the original motion. Concededly, such leave was not requested or granted to plaintiffs at that time but the failure to comply does not bar this pleading. While denominated an amended pleading, the sixth cause of action is in fact supplemental and alleges acts of defendants and damages sustained by plaintiffs after the formulation of the original complaint, acts and damages which could not have been submitted to the trial court as grounds for leave to replead because not in esse at the time of the original motion to dismiss.