Opinion
17290 Index No. 650481/10 Case No. 2021–04291
02-09-2023
Linda Grant WILLIAMS, Plaintiff–Appellant, v. CITIGROUP, INC., et al., Defendants–Respondents.
Kirby McInerney LLP, New York (Daniel Hume of counsel), for appellant. Cleary Gottlieb Steen & Hamilton LLP, New York (Carmine D. Boccuzzi of counsel), for respondents.
Kirby McInerney LLP, New York (Daniel Hume of counsel), for appellant.
Cleary Gottlieb Steen & Hamilton LLP, New York (Carmine D. Boccuzzi of counsel), for respondents.
Webber, J.P., Oing, Gonza´lez, Scarpulla, JJ.
Order, Supreme Court, New York County (Melissa Crane, J.), entered October 27, 2021, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants, underwriters of airline specialty facility bonds (ASFBs) to finance the construction of municipal airports, established, prima facie, that they did not violate the Donnelly Act ( General Business Law § 340 et seq. ) by conspiring to boycott a structure that plaintiff, an experienced structured finance attorney, developed and patented for ASFBs. Deposition testimony of representatives of defendants’ banks and their airlines clients that would have to agree to implementing plaintiff's structure, along with emails and expert reports, demonstrate that defendants’ clients independently considered and rejected plaintiff's structure out of legitimate concerns for the time and expense involved versus the potential benefit of a lower interest rate. Accordingly, the evidence relied upon by defendants does not give rise to the inference that they conspired to boycott plaintiff's structure. In opposition, plaintiff failed to raise a triable issue of fact as to the necessary element of concerted action among defendants "in the form of a conscious commitment to a common scheme designed to achieve an unlawful objective" ( Anderson News, L.L.C. v. American Media, Inc., 899 F.3d 87, 97 [2d Cir.2018] [internal quotation marks omitted], cert denied ––– U.S. ––––, 139 S.Ct. 1375, 203 L.Ed.2d 609 [2019] ). Contrary to plaintiff's contention, the motion court applied the proper standard in stating that, in the absence of direct evidence of a conspiracy, plaintiff had to point to evidence that "tends to exclude the possibility that the alleged conspirators were acting independently" ( Home Town Muffler, Inc. v. Cole Muffler, Inc., 202 A.D.2d 764, 766, 608 N.Y.S.2d 735 [3d Dept. 1994], citing Monsanto Co. v. Spray–Rite Serv. Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 [1984] ; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 [1986] ). Plaintiff failed to submit evidence from which an unlawful arrangement could be inferred (see PharmacyChecker.com, LLC v. National Assn. of Bds. of Pharmacy, 530 F.Supp.3d 301, 336 [S.D. N.Y.2021] ). Notably, defendants JP Morgan and Goldman Sachs actively marketed plaintiff's structure to clients with no success, undermining plaintiff's claim that they had a motive to participate in a boycott of the structure.
Plaintiff's claims for tortious interference with prospective business advantage were also properly dismissed. Plaintiff's claim against defendant Citigroup, that it leveraged its relationship with Pillsbury Winthrop Shaw Pittman LLP to terminate her employment, was not time-barred. The statute of limitations was tolled when plaintiff properly commenced the action in federal court pursuant to 28 USC § 1367(a), and her voluntary dismissal of her supplemental state claims "without prejudice" after filing this action permitted her to avail herself of the saving provision of CPLR 205(a) (see 28 USC § 1367 [d]; CPLR 205[a] ; Bailey v. Brookdale Univ. Hosp. & Med. Ctr., 292 A.D.2d 328, 329, 738 N.Y.S.2d 586 [2d Dept. 2002] ). However, defendants made out their prima facie case in support of dismissal, and plaintiff failed to raise a triable issues of fact as to whether defendants engaged in the wrongful conduct necessary to tortiously interfere with either plaintiff's employers or potential clients (see Carvel Corp. v. Noonan, 3 N.Y.3d 182, 190, 785 N.Y.S.2d 359, 818 N.E.2d 1100 [2004] ).
We have considered plaintiff's remaining contentions and find them unavailing.