Opinion
September 22, 1970
Orders, entered June 27, 1968 and September 18, 1969, modified on the law to dismiss for insufficiency as against defendants Geary and the Chatham Group, Inc., the second, third, fourth, seventh and eighth causes of action, and orders otherwise affirmed, without costs and without disbursements. The bringing of the prior action and judgment dismissing the same as to other defendants do not preclude the maintenance of this action. (See 5 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 5011.11.) The instant complaint is verbose and ineptly drawn but we conclude nonetheless that the first, fifth and sixth causes of action may not be dismissed for insufficiency. The second cause of action is designated as one for "fraud and deceit". However it appears, from the allegations of the prior cause incorporated in and the allegations set forth in this cause of action, that the individual plaintiffs did not rely on the alleged "deceptions and misrepresentations". Furthermore, reliance upon the same, if reliance there was, would not appear to have caused the loss of the J.C. Penney account. The third and fourth causes of action, except insofar as they contain purely conclusory allegations, contain a repetition of allegations of matters provable under the first cause of action. They do not sufficiently plead independent causes of action. The seventh cause of action designated as a cause of action "for prima facie tort", is insufficient in that the prior allegations realleged therein negative the existence of a solely malicious motivation for defendants' alleged interference with plaintiffs' business relations. "We cannot afford to move the law to a stage where any person who, for his own advantage, starts a new business will be compelled to submit to the decision of a jury the question whether also there was not a malicious purpose to injure some person who is thus brought under a new and disadvantageous competition." ( Beardsley v. Kilmer, 236 N.Y. 80, 90-91.) The eighth cause of action designated as one "for inducing breach of contract" is not sustainable because the contracts with J.C. Penney were oral and at will. (Cf. Posner Co. v. Jackson, 223 N.Y. 325.) Insofar as plaintiffs may possess a cause of action for tortious interference with the plaintiffs' contractual and economic relations with J.C. Penney, such cause is covered by the allegations of the first cause of action. It should be noted that plaintiffs eschew a cause of action in defamation (such a cause would appear to be barred by the Statute of Limitations), and, consequently, the sufficiency of the pleaded causes of action is not considered on the basis of whether a cause is pleaded on that theory.
Concur — Eager, J.P., Capozzoli, McGivern, Markewich and McNally, JJ.