Opinion
March 2, 1998
Appeal from the Supreme Court, Suffolk County (Zelman, J.H.O.).
Ordered that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,
Ordered that the judgment is reversed insofar as appealed from, on the law, without costs or disbursements, and the complaint is dismissed.
We find that the Supreme Court erred in concluding that the defendants tortiously interfered in the plaintiff's business relations and breached a fiduciary duty purportedly owed to the plaintiff. Tortious interference with business relations applies to those situations where the third party would have entered into or extended a contractual relationship with plaintiff but for the intentional and wrongful acts of the defendant. In such an action the motive for the interference must be solely malicious, and the plaintiff has the burden of proving this fact (see, M.J. K. Co. v. Matthew Bender Co., 220 A.D.2d 488, 490; WFB Telecommunications v. NYNEX Corp., 188 A.D.2d 257; John R. Loftus, Inc. v. White, 150 A.D.2d 857, 860; 72 N.Y. Jur 2d Interference, § 44, at 240).
The wrongful conduct complained of in this case was a breach of a fiduciary duty owed to the plaintiff by the defendants as a result of a purported agency relationship between the parties. However, the plaintiff failed to demonstrate that a fiduciary duty did in fact exist, and, in any event, failed to show that the acts of the defendants were prompted by malice. At most, the plaintiff showed that the defendants' actions were financially motivated (see, Nassau Diagnostic Imaging Radiation Oncology Assocs. v. Winthrop-University Hosp., 197 A.D.2d 563; Creative Foods Corp. v. Chef Francisco, Inc., 92 A.D.2d 462).
In light of this determination, the remaining arguments need not be addressed.
Bracken, J. P., Santucci, Goldstein and McGinity, JJ., concur.