Opinion
102898/08.
Decided July 2, 2010.
This is an action for tortious interference with contract and slander, arising out of the failed sale of a diamond ring to the retired star Yankees pitcher, Roger Clemens ("Clemens"). Plaintiff moves to reargue defendant's motion to dismiss the complaint to the extent that the court dismissed the first cause of action for tortious interference with contract.
Plaintiff does not seek reargument of the dismissal of the slander or punitive damages claims.
The complaint in this action alleges that Clemens had agreed to purchase a diamond ring at the price of $750,000 and that an invoice was sent to Clemens' assistant, but that he failed to pay for the ring after defendant misrepresented to Clemens and his wife that plaintiff "was gouging them and making a killing at a price of $750,000." The ring had initially been provided to Clemens and his wife pursuant to a "memorandum" but was returned to plaintiff after the invoice had been sent, for plaintiff to arrange for shipment of the ring to Houston Texas "for tax purposes", pursuant to the instructions of Clemens' assistant.
Before the court is solely the issue of whether defendant's contention is correct that plaintiff did not plead the existence of a contract, which is a element of the cause of action for tortious interference with contract ( Kronos, Inc. v AVX Corp., 81 NY2d 90, 94). On a motion to dismiss a complaint, the allegations of the complaint are deemed true and every favorable inference therefrom is given to the plaintiff ( Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414).
To the extent that the complaint alleges that Clemens shook Mr. Hyman's hand and said that they had a deal, that he directed that an invoice be sent in the amount of $750,000 to his assistant, and that the invoice was sent to her, the complaint pleads an oral contract. The memorandum pursuant to which the diamond ring was first placed in the Clemens' possession is sufficient to satisfy the Statute of Frauds (UCC 2-201). The memorandum was signed by Clemens and provided that "[a] sale . . . shall occur only if and when we agree and you shall have received from us a separate invoice." Both of those conditions were alleged to have occurred. The memorandum further states: "Receipt of the merchandise constitutes your agreement to the foregoing terms which represent the entire contract with respect to the merchandise herein described. . . ."
Therefore, pursuant to this court's separate July 1, 2010 decision and order, reargument has been granted ( see Foley v Roche, 68 AD2d 558, 567 [1st Dept 1979]). Upon reargument the motion to dismiss was denied with respect to the first cause of action. The alternative request for leave to replead ( Janssen v Incorporated Vil. of Rockville Ctr. , 59 AD3d 15 , 27 [2nd Dept 2008]; see Advanced Global Tech., LLC v Sirius Satellite Radio, Inc. , 44 AD3d 317 , 318 [1st Dept 2007]) is unnecessary under the circumstances.