" Subsequent to Judge Gleeson's order, the New York Court of Appeals reiterated that "[e]ver since tortious interference with contractual relations made its first cautious appearance in the New York Reports . . . breach of contract has repeatedly been listed among the elements of a claim of tortious interference with contractual relations." NBT Bancorp, Inc. v. Fleet/Norstar Financial Group, Inc., 87 N.Y.2d 614, 620-21, 641 N.Y.S.2d 581, 584, 664 N.E.2d 492, 495 (1996); see also Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 424, 646 N.Y.S.2d 76, 82, 668 N.E.2d 1370, 1375 (1996) (elements of tortious interference with contract include "actual breach of the contract"); Downtown Women's Center, Inc. v. Carron, 237 A.D.2d 209, 210, 655 N.Y.S.2d 479, 480 (1st Dep't 1997) (actual breach is "necessary to any cause of action for tortious interference with contract"). On appeal, D'Andrea argues that in a case such as this one, where the plaintiff alleges that the defendant interfered with performance of the plaintiff's own contractual obligations, New York courts would apply a different rule than in a case where the defendant is alleged to have interfered with performance of contractual obligations by a third party.

In order to succeed on a claim for tortious interference with a contract, plaintiff must provide proof of an actual breach of contract. See D'Andrea v. Rafla-Demetrious, 146 F.3d 64, 64 (2d Cir. 1998) ("Because there was no breach of contract in the instant case, [plaintiff's] tortious interference with contractual relations claim must fail."); Downtown Women's Ctr., Inc. v. Carron, 655 N.Y.S.2d 479, 480 (1st Dep't 1997) (stating that actual breach of a contract is "necessary to any cause of action for tortious interference with contract"). Because there was no breach of contract here, there can be no claim for tortious interference with the contract.

Appeal from the Supreme Court, New York County (Herman Cahn, J.). Plaintiff's claim for tortious interference with contract was properly dismissed since her pleading does not contain the requisite allegations that defendant-respondent intentionally procured an actual breach by the contracting party ( see, Downtown Women's Ctr. v. Carron, 237 A.D.2d 209, 210), and that she did so without economic justification ( see, WMW Mach. Co. v. Koerber AG., 240 A.D.2d 400, 401). Plaintiff's fraud claim was also properly found to have been facially deficient, since plaintiff did not plead that defendant-respondent had a duty to disclose the allegedly withheld information based on a contractual or confidential relationship ( see, Mobil Oil Corp. v. Joshi, 202 A.D.2d 318), and did not plead other elements of the alleged fraud with sufficient particularity ( see, CPLR 3016 N.Y.C.P.L.R.).

Thus, to the extent that her claim is premised on her employment relationship with AMC, it must be dismissed absent an allegation that AMC breached the contract. (See Downtown Women's Ctr., Inc. v Carron, 237 AD2d 209, 210 [1st Dept 1997] [affirming dismissal of claim where third-party did not actually breach contract]). b. Interference with prospective business relations

But, even if she had urged United to pay Defendants more money or if she herself paid money to Defendants (voluntarily or otherwise), there is nothing to indicate that her conduct would constitute a violation of her policy with United. The failure to allege an actual breach by United's counterparties is destructive of its tortious interference with contract claim (Oddo Asset Mgt. v Barclays Bank PLC, 19 NY3d 584, 594-595 [2012]; Downtown Women's Ctr., Inc. v Carron, 237 AD2d 209 [1st Dept 1997]; Benton v Kennedy-Van Saun Mfg. & Eng'g Corp., 2 AD2d 27 [1st Dept 1956]; PJI 3:56). This aspect of the case is on all fours with Aetna Health Inc. v Hishmeh (2013 NY Slip Op. 51353[U], 40 Misc 3d 1230[A] [Sup Ct, NY County 2013]), where Justice Melvin Schweitzer held that a health insurer had failed to state a cause of action against a medical billing company for tortious interference with contract.

But, even if she had urged United to pay Defendants more money or if she herself paid money to Defendants (voluntarily or otherwise), there is nothing to indicate that her conduct would constitute a violation of her policy with United. The failure to allege an actual breach by United's counterparties is destructive of its tortious interference with contract claim (Oddo Asset Mgt. v. Barclays Bank PLC, 19 N.Y.3d 584, 594–595, 950 N.Y.S.2d 325, 973 N.E.2d 735 [2012]; Downtown Women's Ctr., Inc. v. Carron, 237 A.D.2d 209, 655 N.Y.S.2d 479 [1st Dept.1997]; Benton v. Kennedy–Van Saun Mfg. & Eng'g Corp., 2 A.D.2d 27, 152 N.Y.S.2d 955 [1st Dept.1956]; PJI 3:56). This aspect of the case is on all fours with Aetna Health Inc. v. Hishmeh, 2013 N.Y. Slip Op. 51353(U), 40 Misc.3d 1230(A), 2013 WL 4467232 (Sup.Ct., N.Y. County 2013), where Justice Melvin Schweitzer held that a health insurer had failed to state a cause of action against a medical billing company for tortious interference with contract.

But, even if she had urged United to pay Defendants more money or if she herself paid money to Defendants (voluntarily or otherwise), there is nothing to indicate that her conduct would constitute a violation of her policy with United. The failure to allege an actual breach by United's counterparties is destructive of its tortious interference with contract claim (Oddo Asset Mgt. v. Barclays Bank PLC, 19 N.Y.3d 584, 594–595, 950 N.Y.S.2d 325, 973 N.E.2d 735 [2012] ; Downtown Women's Ctr., Inc. v. Carron, 237 A.D.2d 209, 655 N.Y.S.2d 479 [1st Dept.1997] ; Benton v. Kennedy–Van Saun Mfg. & Eng'g Corp., 2 A.D.2d 27, 152 N.Y.S.2d 955 [1st Dept.1956] ; PJI 3:56 ). This aspect of the case is on all fours with Aetna Health Inc. v. Hishmeh, 2013 N.Y. Slip Op. 51353(U), 40 Misc.3d 1230(A), 2013 WL 4467232 (Sup.Ct., N.Y. County 2013), where Justice Melvin Schweitzer held that a health insurer had failed to state a cause of action against a medical billing company for tortious interference with contract.

Whether those employees needed access to do their jobs, whether access was sufficiently restricted, and whether the password was a reasonable method of preserving confidentiality are questions of fact. Cf, Downtown Women's Ctr. v Carron, 237 AD2d 209 (1st Dept 1997) (patient list, left unprotectedon centralized computer accessible to allpersons in the medical suite sharing or using computer not trade secret). The fact that WQIS allowed credentialed employees in three departments to log in using a password or take information home does not, standing alone, destroy confidentiality.

In fact, plaintiffs do not dispute that the CIS was not password protected and could be accessed by anyone with access to a computer in the office (see Affirmation of Steve I. Locke [Locke Aff.], exhibit B, deposition of Peter Tiboris at 416). While the CIS was on a database in the plaintiffs' computer system, as it was never protected and was available to anyone with access to a computer in the office, it cannot qualify as a trade secret (see Downtown Women's Ctr., Inc. v Carron, 237 AD2d 209, 209 [1st Dept 1997]).

As to Affinity, while Poznanski asserts that "Affinity was working on dozens of potential real estate transactions with third parties and had developed listings of potential other customers and sources of third party business transactions" which information, Poznanski argues, was misappropriated by Wang, there is no documentation of any kind or any evidence whatsoever to support the misappropriation claim. Moreover, there has been no showing that this alleged "information" was confidential to the plaintiffs, was kept in secret and had been disseminated to third parties in the first place (Downtown Women's Center, Inc. v. Carron, 237 AD2d 209, 1st Dept., 1997; Amana Express Int'l, Inc. v. Pier-Air Int'l, Ltd., 211 AD2d 606, 2nd Dept., 1995). In light of the foregoing, plaintiffs' misappropriation claims are dismissed.