Opinion
February 2, 1990
Appeal from the Supreme Court, Erie County, Fudeman, J.
Present — Denman, J.P., Green, Balio and Lawton, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Defendants appeal from two orders that denied their motions pursuant to CPLR 3211 and 3212 for dismissal of, or for summary judgment on, plaintiff's various causes of action, and for reargument of those motions. Defendants contend that they are entitled to the relief requested because the allegations in the complaint fail to state a cause of action and lack merit as a matter of law. Defendant Fisher also contends that the court erred in refusing to identify undisputed or incontrovertible facts (see, CPLR 3212 [g]).
Upon our review of the pleadings, the parties' submissions and the controlling authorities, we conclude that certain of plaintiff's claims against the various defendants cannot be sustained in law or fact, and that, with respect to those, the court erred in denying defendants' motions for dismissal or summary judgment. Accordingly, we modify the order appealed from to dismiss the following claims: as against defendant Fisher, the claim that it wrongfully terminated its contract with plaintiff; as against defendant Process, the claim that it wrongfully induced Fisher to terminate its contract with plaintiff; as against defendants Process and Fisher, the claim that they wrongfully induced Rice to leave plaintiff's employ; and as against all three defendants, the claim that they conspired to do the foregoing (see, Alexander Alexander v Fritzen, 68 N.Y.2d 968, 969; Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 189-192).
Plaintiff's remaining claims state a cause of action and, as to those, the court properly found triable questions of fact. As against defendant Rice, plaintiff has a legally cognizable and arguably meritorious cause of action for Rice's breach of his fiduciary duty to plaintiff; and as against defendants Process and Fisher, plaintiff has valid causes of action alleging that they wrongfully induced Rice to breach his fiduciary duty to plaintiff (Fender v Prescott, 101 A.D.2d 418, 422-423, affd 64 N.Y.2d 1077; Schachter v Kulik, 96 A.D.2d 1038, 1039, appeal dismissed 61 N.Y.2d 758; Pace v Perk, 81 A.D.2d 444, 454-455; Foley v D'Agostino, 21 A.D.2d 60, 66-68; see also, 5 Scott, Trusts § 506, at 3568 [3d ed]).
The court did not abuse its discretion in refusing to identify undisputed or incontrovertible facts (CPLR 3212 [g]).