Opinion
2002-08800, 2002-11433
Argued March 21, 2003.
April 28, 2003.
In an action, inter alia, to recover damages for intentional tortious interference with contract, the defendants Spencer, Maston McCarthy, LLP, and Gilbert G. Spencer, Jr., appeal, as limited by their brief, from so much of (1) an order of the Supreme Court, Nassau County (Mahon, J.), dated July 30, 2002, as denied those branches of their motion which were, in effect, for summary judgment dismissing the causes of action to recover damages for intentional interference with contract and unjust enrichment, for reimbursment on a quantum meruit basis for its legal fees in an action entitled Morgan v. Talusan, pending in Supreme Court, Bronx County, under Index No. 8083/01, and to impose a sanction pursuant to 22 NYCRR 130-1.1 upon the plaintiff, and (2) an order of the same court, dated November 15, 2002, as, in effect, upon reargument, adhered to the original determination, and denied that branch of their motion which was for a protective order to quash subpoenas to depose nonparty witnesses.
Spencer, Maston McCarthy, LLP, Albany, N.Y. (Gilbert G. Spencer, Jr., appellant pro se and Bruce Maston of counsel), appellant pro se and for appellant Gilbert G. Spencer, Jr.
Silberstein, Awad Miklos, P.C., Garden City, N.Y. (Paul N. Nadler and Jason C. Molesso of counsel), respondent pro se.
Before: FRED T. SANTUCCI, J.P., ROBERT W. SCHMIDT, THOMAS A. ADAMS, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the appeal from the order dated July 30, 2002 is dismissed, as that order was superseded by the order dated November 15, 2002, made upon reargument; and it is further,
ORDERED that the order dated November 15, 2002, is modified by deleting the provision thereof which, upon reargument, denied those branches of the motion of the defendants Spencer, Maston McCarthy, LLP, and Gilbert G. Spencer, Jr., which were for summary judgment dismissing the causes of action to recover damages for intentional interference with contract and unjust enrichment and substituting therefor a provision, upon reargument, granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, the complaint is dismissed insofar as asserted against the appellants, the action against the remaining defendant is severed, and the order dated July 30, 2002, is modified accordingly; and it is further,
ORDERED that one bill of costs is awarded to the appellants.
The defendants Spencer, Maston McCarthy, LLP, and Gilbert G. Spencer, Jr. (hereinafter the Spencer defendants), established their prima facie entitlement to summary judgment dismissing the complaint insofar as asserted against them (see Zuckerman v. City of New York, 49 N.Y.2d 557). The burden then shifted to the plaintiff to lay bare its proof to show that there was a triable issue of fact (see Kaplan v. Hamilton Med. Assocs., 262 A.D.2d 609, 610). In opposition, the plaintiff failed to submit evidence that the Spencer defendants used unlawful means to interfere with the contractual relationship between the plaintiff and the plaintiff's client (see Wolf v. National Counsel of Young Israel, 264 A.D.2d 416, 417), or that the plaintiff conferred a benefit on the Spencer defendants for which it was not adequately compensated (see Smith v. Chase Manhattan Bank, USA, 293 A.D.2d 598, 600). Acccordingly, the Spencer defendants were entitled to summary judgment dismissing the plaintiff's causes of action to recover damages for intentional interference with contract and unjust enrichment insofar as asserted against them.
The parties' remaining contentions are either academic or without merit.
SANTUCCI, J.P., SCHMIDT, ADAMS and COZIER, JJ., concur.