Opinion
103018/2010
03-24-2011
Vandenberg, Inc., Plaintiff v. Townhouse 84, LLC, 45 WEST 84th STREET, LLC, AARON PATEL a/k/a CHIRAYU PATEL, KIRAN PATEL, CHECKSPRING BANK, BEN SHAOUL, ZAK TENDLE d/b/a MAGNUM REAL ESTATE GROUP, and PATTERSON BELKNAP WEBB & TYLER, LLP, Defendants
For Plaintiff Robert Lewis Esq. For Defendant Checkspring Bank Philip Byler Esq. Nesenoff & Miltenberg, LLP For Defendant Patterson Belknap Webb & Tyler, LLP John Winter Esq. Patterson Belknap Webb & Tyler, LLP
For Plaintiff Robert Lewis Esq.
For Defendant Checkspring Bank Philip Byler Esq. Nesenoff & Miltenberg, LLP
For Defendant Patterson Belknap Webb & Tyler, LLP John Winter Esq. Patterson Belknap Webb & Tyler, LLP
Lucy Billings, J.
Plaintiff, a real estate broker, sues to recover damages for an unpaid brokerage fee pursuant to plaintiff's contract with defendants Aaron Patel and Kiran Patel, members of defendant 45 West 84th Street, LLC. These defendants sold real property to defendant Townhouse 84, LLC, in which defendants Shaoul and Tendle retained an interest. The attorney for Townhouse 84, Shaoul, and Tendle, defendant Patterson Belknap Webb & Tyler, LLP, and the holder of a mortgage on the real property, defendant Checkspring Bank, separately move to dismiss the action against each of these two defendants based on the complaint's failure to state a claim. C.P.L.R. § 3211(a)(7). For the reasons explained below, the court grants both motions.
II.APPLICABLE STANDARDS
Upon defendants' motion to dismiss claims pursuant to C.P.L.R. § 3211(a)(7), the court may not rely on facts alleged by the moving defendants to defeat the claims unless the evidence demonstrates the absence of any significant dispute regarding those facts and completely negates the allegations against the moving defendants. Lawrence v. Graubard Miller, 11 NY3d 588, 595 (2008); Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 (2002); Leon v. Martinez, 84 NY2d 83, 87-88 (1994); Yoshiharu Igarashi v. Shohaku Higashi, 289 AD2d 128 (1st Dep't 2001). The court must accept the complaint's allegations as true, liberally construe them, and draw all reasonable inferences in plaintiff's favor. Nonnon v. City of New York, 9 NY3d 825, 827 (2007); Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d at 326; Harris v. IG Greenpoint Corp., 72 AD3d 608, 609 (1st Dep't 2010); Vig v. New York Hairspray Co., L.P., 67 AD3d 140, 144-45 (1st Dep't 2009). The applicable standard is thus whether reasonable inferences from the complaint sustain a claim, especially upon a preanswer motion to dismiss as here. Harris v. IG Greenpoint Corp., 72 AD3d at 609; Pepler v. Coyne, 33 AD3d 434, 435 (1st Dep't 2006). See Lappin v. Greenberg, 34 AD3d 277, 279 (1st Dep't 2006). In short, the court may dismiss a claim based on C.P.L.R. § 3211(a)(7) only if the allegations completely fail to state a claim. Leon v. Martinez, 84 NY2d at 88; Harris v. IG Greenpoint Corp., 72 AD3d at 609; Frank v. DaimlerChrysler Corp., 292 AD2d 118, 121 (1st Dep't 2002); Scott v. Bell Atl. Corp., 282 AD2d 180, 183 (1st Dep't 2001).
III.THE MOTION TO DISMISS PLAINTIFF'S CLAIMS AGAINST DEFENDANT LAW FIRM AND BANK FOR TORTIOUS INTERFERENCE WITH A CONTRACT
Plaintiff's first claim for breach of contract does not allege any conduct by either Patterson Belknap or Checkspring Bank. Plaintiff's second claim for tortious interference with a contract, however, alleges that these two and other defendants caused the breach of contract. A claim of tortious interference with a contract requires (1) a valid contract to which plaintiff was a party, (2) an actual breach of that contract by another party to it, (3) defendants' knowledge of the contract, (4) their intentional procurement of the breach, and (5) damages to plaintiff from that interference. White Plains Coat & Apron Co., Inc. v. Cintas Corp., 8 NY3d 422, 426 (2007); Lama Holding Co. v. Smith Barney, 88 NY2d 413, 424 (1996); Foster v. Churchill, 87 NY2d 744, 749-50 (1996); Burrowes v. Combs, 25 AD3d 370, 373 (1st Dep't 2006).
Plaintiff and the moving defendants do not dispute that the complaint sufficiently alleges the elements of a contract and its breach by other defendants. The moving defendants claim, however, that the complaint fails to allege any facts indicating these defendants' knowledge of plaintiff's contract with the Patels. Mautner Glick Corp. v. Edward Lee Cave, Inc., 157 AD2d 594 (1st Dep't 1990). See Preamble Props. v. Woodard Antiques Corp., 293 AD2d 330, 331 (1st Dep't 2002); Bogoni v. Friedlander, 197 AD2d 281, 288 (1st Dep't 1994). Even if plaintiff's claim that defendants "were aware that plaintiff was acting as the broker on behalf of the owners and landlords of the premises" allowed a reasonable inference that defendants knew of the contract, plaintiff fails to allege that they procured the breach. Aff. of Philip A. Byler, Ex. A ¶ 26. The only facts the complaint alleges regarding this element are that defendants "refused to inform plaintiff of the status of the purchase of the premises or the completion of the purchase of the premises," id. ¶ 29, and "acknowledge that Magnum or entities controlled and operated by them had purchased the premises," id. ¶ 30, and these omissions "were intended to deprive plaintiff of commissions due and owing to it." Id. ¶ 31. Plaintiff's failure to allege any duty that Patterson Belknap or Checkspring Bank owed to plaintiff, however, renders irrelevant their alleged refusal to advise plaintiff. Any obligation on the law firm's part, in fact, would be inconsistent with the parties' relationships: the firm's exclusive duty was to its clients, the purchasers, not plaintiff broker, which represented the sellers.
The allegation that defendants "interfered with plaintiff's agreement with Aaron and Kiran and the seller," id. ¶ 32, without any facts showing how the law firm or bank interfered other than by their silence about the purchase of the premises, and without any basis for their obligation to advise plaintiff about the purchase, amounts to no more than a bare legal conclusion. Delran v. Prada USA Corp., 23 AD3d 308 (1st Dep't 2005); HT Capital Advisors v. Optical Resources Group, 276 AD2d 420 (1st Dep't 2000); Beattie v. Brown & Wood, 243 AD2d 395 (1st Dep't 1997). A legal conclusion is not entitled to the favorable inferences ordinarily accorded a pleading upon a motion to dismiss pursuant to C.P.L.R. § 3211(a)(7), Leder v. Spiegel, 31 AD3d 266, 267 (1st Dep't 2006); Delran v. Prada USA Corp., 23 AD3d 308; Skillgames, LLC v. Brody, 1 AD3d 247, 250 (1st Dep't 2003), and contributes nothing toward withstanding dismissal. HT Capital Advisors v. Optical Resources Group, 276 AD2d 420. By itself, the conclusory allegation of interference with plaintiff's brokerage agreement fails to allege what actions the moving defendants took that procured defendant seller's breach of the agreement and thus is insufficient to plead the tortious interference claim. Lama Holding v. Smith Barney, 88 NY2d at 424-25. See Nicosia v. Board of Mgrs. of the Weber House Condominium, 77 AD3d 455, 456 (1st Dep't 2010).
Allegations demonstrating that defendant seller's breach of the brokerage agreement would not have occurred but for Patterson Belknap's or Checkspring Bank's actions might fill the void left by the above omissions in facts supporting their procurement of the breach. Madison Third Bldg. Cos., LLC v. Berkey, 30 AD3d 1146 (1st Dep't 2006). Plaintiff does not attempt to contrive such allegations, however, as it would be difficult to do so. Burrowes v. Combs, 25 AD3d at 373; Cantor Fitzgerald Assoc. v. Tradition N. Am., 299 AD2d 204 (1st Dep't 2002). If the sale closed, plaintiff broker still would be entitled to its commission, even if plaintiff were not notified of the closing and therefore failed to attend. Although in this instance plaintiff is relegated to collecting its commission later, rather than from the sale proceeds distributed at the closing, plaintiff does not point to this disadvantage as the source of plaintiff's injury. For all these reasons, the complaint fails to establish the moving defendants' intentional procurement of the breach. See Kralic v. Helmsley, 294 AD2d 234, 235 (1st Dep't 2002); William Kaufman Org. v. Graham & James, 269 AD2d 171, 174 (1st Dep't 2000).
In an attempt to remedy these pleading deficiencies, plaintiff's president, Dexter Guerrieri, attests that Patterson Belknap was interested in reducing costs for its client Townhouse 84 and gave its client legal advice that no real estate commission was owed due to the nature of the transaction. Even if Guerrieri suggests that Patterson Belknap structured the real property sale so it would avoid or frustrate plaintiff's commission, he articulates no evidentiary facts to support such a suggestion, reducing it to sheer speculation insufficient to revive a claim for tortious interference or any other claim.
Regarding Checkspring Bank, Guerrieri attests that it merely acted in its own interests in selling the property to protect its investment and accepted a diminution in its mortgage to facilitate a sale. While Guerrieri attests that defendants collaborated or conspired to deprive plaintiff of its commission, again no facts whatsoever support this claim, such that it, too, amounts to no more than speculation and thus fails to satisfy pleading requirements, for tortious interference or another claim. Chestnut Hill Partners, LLC v. Van Raalte, 45 AD3d 434, 435 (1st Dep't 2007); Burrowes v. Combs, 25 AD3d at 373.
IV.REPLEADING
Plaintiff's proposition that disclosure would shed more light on the facts is too unspecific to forestall defendants' motion to dismiss. C.P.L.R. § 3211(d); Art Capital Group, LLC v. Neuhaus, 70 AD3d 605, 607 (1st Dep't 2010); Matz v. Prospect Energy Corp., 63 AD3d 619, 620 (1st Dep't 2009). A mere hope or theoretical possibility of finding evidence that would supply the crucial underpinning for defendants' interference with plaintiff's brokerage contract, absent any threshold indication beyond speculation, does not justify denying or postponing dismissal. C.P.L.R. § 3211(d); Matz v. Prospect Energy Corp., 63 AD3d at 620; Fitz-Gerald v. Donaldson, Lufkin & Jenrette, 294 AD2d 176 (1st Dep't 2002); Rochester Linoleum & Carpet Ctr., Inc. v. Cassin, 61 AD3d 1201, 1202 (3d Dep't 2009); Black v. Green Harbour Homeowners' Assn., Inc., 19 AD3d 962, 964 (3d Dep't 2005). Guerrieri's affidavit identifies no facts that plaintiff seeks to uncover to oppose the motion, nor establishes that any such facts are exclusively in defendants' possession. Art Capital Group, LLC v. Neuhaus, 70 AD3d at 607; Matz v. Prospect Energy Corp., 63 AD3d at 620; Angel v. Bank of Tokyo-Mitsubishi, Ltd., 39 AD3d 368, 370 (1st Dep't 2007); Bouley v. Bouley, 19 AD3d 1049, 1050 (4th Dep't 2005).
Neither does plaintiff demonstrate that it could cure the pleading deficiencies in its complaint by any other means, Thea v. Thea, 284 AD2d 245, 246 (1st Dep't 2001), such as presenting evidence to support another viable claim against the moving defendants, other than one pleaded, to entitle plaintiff to repleading. C.P.L.R. § 3211(e); Fletcher v. Boies, Schiller & Flexner, LLP, 75 AD3d 469, 470 (1st Dep't 2010); Josephs v. Bank of NY, 302 AD2d 318, 319 (1st Dep't 2003); Schoettle v. Taylor, 282 AD2d 411, 412 (1st Dep't 2001); HT Capital Advisors v. Optical Resources Group, 276 AD2d 420. See Elliman v. Elliman, 259 AD2d 341 (1st Dep't 1999). To plead the related claim of tortious interference with business relations, for example, plaintiff must allege that (1) it conducted business relations with a third party, (2) defendants knew of the relationship and interfered with it, (3) defendants' malice or wrongful conduct constituting a crime or independent tort was the sole cause of the interference, and (4) defendants' interference injured the business relations. Amaranth LLC v. J.P. Morgan Chase & Co., 71 AD3d 40, 47 (1st Dep't 2009); Thome v. Alexander & Louisa Calder Found., 70 AD3d 88, 108 (1st Dep't 2009). Such a claim for interference with non-binding or prospective business relations requires more culpable conduct by defendants than interference with a contract. Carvel Corp. v. Noonan, 3 NY3d 182, 189-90 (2004); NBT Bancorp v. Fleet/Norstar Fin. Group, 87 NY2d 614, 621 (1996); Leonard v. Gateway II, LLC, 68 AD3d 408, 409-10 (1st Dep't 2009); Lobel v. Maimonides Med. Ctr., 39 AD3d 275, 277 (1st Dep't 2007). See Schorr v. Guardian Life Ins. Co. of Am., 44 AD3d 319 (1st Dep't 2007).
Plaintiff, however, does not claim that the law firm's or bank's actions (1) were motivated solely by malice or illegal, Madison Third Bldg. Cos., LLC v. Berkey, 30 AD3d 1146; Shared Communications Servs. of ESR, Inc. v. Goldman Sachs & Co., 23 AD3d 162, 163 (1st Dep't 2005); Dilimentin & Dilimentin v. Stein, 297 AD2d 601, 602 (1st Dep't 2002); Schoettle v. Taylor, 282 AD2d at 411-12, see Freedman v. Pearlman, 271 AD2d 301, 305 (1st Dep't 2000), or otherwise wrongful independent of the interference, Jacobs v. Continuum Health Partners, 7 AD3d 312, 313 (1st Dep't 2004), or (2) were the sole cause of harm to plaintiff's business relations. Buechner v. Avery, 38 AD3d 443, 444 (1st Dep't 2007). Plaintiff's pleading of interference with a binding, enforceable contract, moreover, is inconsistent with a claim of interference with prospective business relations. Nicosia v. Board of Mgrs. of the Weber House Condominium, 77 AD3d at 457.
Finally, plaintiff has pleaded no facts indicating a contractual relationship between plaintiff and the moving defendants, let alone demonstrating a relationship of higher trust between them, as required to support a fiduciary duty and hence a viable claim for breach of a fiduciary duty. EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 20 (2005); Friedman v. Fife, 262 AD2d 167, 168 (1st Dep't 1999). Again, the parties' arm's length, if not antithetical, relationship is inconsistent with any duty of the bank or law firm to plaintiff, the representative of parties who owned property against which the bank held a mortgage and who transacted business with the firm's clients. Since the bank and the firm owed no obligation to respond to plaintiff's inquiries regarding the sale and therefore did not respond, neither may plaintiff claim these defendants misrepresented information regarding the sale on which plaintiff relied.
V.CONCLUSION
Based on plaintiff's failure to state a claim against either defendant Patterson Belknap Webb & Tyler, LLP, or defendant Checkspring Bank, the court grants their separate motions to dismiss the complaint against these defendants. C.P.L.R. § 3211(a)(7). Based on plaintiff's further failure to show that plaintiff potentially could state a claim against either defendant if granted an opportunity for disclosure or repleading, the court also denies such leave. This decision constitutes the court's order.
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LUCY BILLINGS, J.S.C.