Summary
affirming dismissal of a tortious interference claim where the defendant's "conduct was, at least in part, to advance its own interests, not solely for the purpose of harming the plaintiff"
Summary of this case from Nat'l Rifle Ass'n of Am. v. CuomoOpinion
2013-04760
06-24-2015
MVB COLLISION, INC., doing business as Mid Island Collision, Inc., appellant, v. PROGRESSIVE INSURANCE COMPANY, respondent, et al., defendants.
Steven F. Goldstein, LLP, Carle Place, N.Y. (Gina M. Arnedos of counsel), for appellant. Nelson Levine De Luca & Hamilton, LLC, New York, N.Y. (Michael R. Nelson and Kymberly Kochis of counsel), for respondent.
Steven F. Goldstein, LLP, Carle Place, N.Y. (Gina M. Arnedos of counsel), for appellant.
Nelson Levine De Luca & Hamilton, LLC, New York, N.Y. (Michael R. Nelson and Kymberly Kochis of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.
Opinion In an action, inter alia, to recover damages for tortious interference with business relations, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (DeStefano, J.), entered March 20, 2013, as granted that branch of the motion of the defendant Progressive Insurance Company which was for summary judgment dismissing the cause of action alleging tortious interference with prospective and existing business relations insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendant Progressive Insurance Company (hereinafter Progressive) demonstrated its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging tortious interference with prospective and existing business relations insofar as asserted against it. With respect to so much of that cause of action as alleged tortious interference with prospective business relations, Progressive established that its conduct was, at least in part, to advance its own interests, not solely for the purpose of harming the plaintiff (see Carvel Corp. v. Noonan, 3 N.Y.3d 182, 190, 785 N.Y.S.2d 359, 818 N.E.2d 1100 ; Moulton Paving, LLC v. Town of Poughkeepsie, 98 A.D.3d 1009, 1013, 950 N.Y.S.2d 762 ; Pink v. Half Moon Coop. Apts., S., Inc., 68 A.D.3d 739, 741, 891 N.Y.S.2d 107 ; Newport Serv. & Leasing, Inc. v. Meadowbrook Distrib. Corp., 18 A.D.3d 454, 455, 794 N.Y.S.2d 426 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Anesthesia Assoc. of Mount Kisco, LLP v. Northern Westchester Hosp. Ctr., 59 A.D.3d 473, 477–478, 873 N.Y.S.2d 679 ; Pink v. Half Moon Coop. Apts., S., Inc., 68 A.D.3d at 741, 891 N.Y.S.2d 107 ). Additionally, Progressive demonstrated its prima facie entitlement to judgment as a matter of law dismissing so much of that cause of action as alleged tortious interference with existing business relations (see White Plains
Coat & Apron Co., Inc. v. Cintas Corp., 8 N.Y.3d 422, 426, 835 N.Y.S.2d 530, 867 N.E.2d 381 ; Bellino Schwartz Padob Adv. v. Solaris Mktg. Group, 222 A.D.2d 313, 314, 635 N.Y.S.2d 587 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Guerrera v. Zysk, 119 A.D.3d 647, 648–649, 990 N.Y.S.2d 234 ; Mallen v. Farmingdale Lanes, LLC, 89 A.D.3d 996, 997, 933 N.Y.S.2d 338 ).
The plaintiff's contention that summary judgment should have been denied as premature under CPLR 3212(f) is unpersuasive. A party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant (see Singh v. Avis Rent A Car Sys., Inc., 119 A.D.3d 768, 770, 989 N.Y.S.2d 302 ; Boorstein v. 1261 48th St. Condominium, 96 A.D.3d 703, 704, 946 N.Y.S.2d 200 ; Corwin v. Heart Share Human Servs. of N.Y., 66 A.D.3d 814, 815, 887 N.Y.S.2d 246 ). Here, the plaintiff did not satisfy its burden of demonstrating that Progressive's motion for summary judgment was premature (see Williams v. Spencer–Hall, 113 A.D.3d 759, 760, 979 N.Y.S.2d 157 ). Accordingly, the Supreme Court properly granted that branch of Progressive's motion which was for summary judgment dismissing the cause of action alleging tortious interference with prospective and existing business relations insofar as asserted against it.
The plaintiff's contention that the Supreme Court improperly granted that branch of Progressive's motion pursuant to CPLR 3211(a)(7) which was to dismiss the cause of action alleging violations of General Business Law § 349 is not properly before this Court, as that motion was decided in a prior order dated March 23, 2010 (see Pauyo v. Pauyo, 102 A.D.3d 847, 848, 959 N.Y.S.2d 215 ; Campione v. Alberti, 98 A.D.3d 706, 707, 950 N.Y.S.2d 392 ; Murray v. City of New York, 43 A.D.3d 429, 430, 841 N.Y.S.2d 341 ).