Opinion
November 9, 1992
Appeal from the Supreme Court, Queens County (Rutledge, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
We reject the contention of the appellant (hereinafter Fitness) that its motion in Action No. 1 for summary judgment on its counterclaims was improperly denied. Summary judgment is a drastic measure and it should not be granted if there is any question as to the existence of a triable issue of fact (see, Andre v Pomeroy, 35 N.Y.2d 361, 364; Burger v Brookhaven Med. Arts Bldg., 131 A.D.2d 622, 623). Here, there are questions of fact as to whether the financial information supplied by the appellant to the landlord fulfilled its contractual obligations and whether the delay of the plaintiff (hereinafter New Dimensions) in seeking the landlord's approval for assignment of the lease from New Dimensions to Fitness contributed to the alleged breach of a contract between them.
Furthermore, the Supreme Court properly dismissed Fitness's third cause of action to recover damages for tortious interference with contractual relations asserted against Frank Marzano, president of New Dimensions, and Albert Pennisi, attorney for New Dimensions. To succeed on such a cause of action against Marzano, Fitness must establish that Marzano acted outside the scope of his authority as president of New Dimensions or that he personally gained from New Dimensions' breach (see, Murtha v Yonkers Child Care Assn., 45 N.Y.2d 913, 915; Courageous Syndicate v People-to-People Sports Comm., 141 A.D.2d 599). Likewise, for Fitness to succeed against Albert Pennisi, as New Dimensions' attorney, it must establish that he committed a specific fraudulent, malicious, or tortious act (see, Burger v Brookhaven Med. Arts Bldg., supra, at 624). Fitness merely alleged that Marzano and Pennisi failed to return its down payment upon request and that their actions were "wanton and malicious". This is not enough to sustain a cause of action to recover damages for tortious interference with contractual relations. Further, so much of the third cause of action as alleged conspiracy was correctly dismissed because New York does not recognize an independent tort to recover damages for civil conspiracy (see, Shepherd Real Estate v Gibbs, 169 A.D.2d 814, 815). Thompson, J.P., Bracken, Pizzuto and Santucci, JJ., concur.