Foster v. Churchill

12 Citing briefs

  1. Quinn v. Jacobs

    MEMORANDUM OF LAW in Support re: 14 MOTION to Dismiss Counterclaim -.. Document

    Filed June 6, 2012

    The standard for measuring abuse of the privilege is malice. Foster v. Churchill, 87 N.Y.2d at 750, 665 N.E.2d at 158 (corporate directors protected by “economic interest” privilege despite finding that they did not act in good faith where there was no finding of malice). Here, Mr. Jacobs’ failure to allege malice, the absence of any allegation that Mr. Quinn and the "Others" believed their statements were false, or that their concerns over Mr. Jacobs' conduct were misplaced, or that they did not have any basis for their statements, or that his resignation was not in fact voluntary, are fatal to his claims and cannot be cured by amendment.

  2. House v. Wackenhut Services, Inc. et al

    MEMORANDUM OF LAW in Support re: 46 MOTION for Summary Judgment.. Document

    Filed February 1, 2012

    Also, a qualified privilege extends to false defamatory statements made to people with a Case 1:10-cv-09476-CM-FM Document 48 Filed 02/01/12 Page 24 of 26 -23- “common interest in the subject matter.” Foster v. Churchill, 665 N.E.2d 153, 157, 87 N.Y.2d 744, 751 (N.Y. 1996). It applies to “evaluations or statements of employees made by their superiors” Shamley v. ITT Corp., 869 F.2d 167, 173 (2d Cir. 1989); see Albert v. Loksen, 239 F.3d 256, 272 (2d Cir. 2001), (“Communications by supervisors or co-workers made in connection with the evaluation of an employee's performance, including allegations of employee misconduct and communications regarding the reasons for an employee's discharge, fall within the [common interest] privilege.”)

  3. Appel v. Schoeman Updike Kaufman Stern & Ascher L.L.P. et al

    MEMORANDUM OF LAW in Support re: 86 MOTION to Dismiss pursuant to Rule 12

    Filed May 9, 2014

    “Even though a statement is defamatory, there exists a qualified privilege where the communication is made to persons who have some common interest in the subject matter.” Foster v. Churchill, 87 N.Y.2d 744, 751 (1996) (citing Liberman v. Gelstein, 80 N.Y.2d 429, 437 (1992)). The “common interest” may be a shared economic or business interest in the subject matter, and includes “communications reviewing an employee’s performance, competence or fitness.”

  4. Enzo Biochem, Inc., et al v. Amersham PLC, et al

    REPLY MEMORANDUM OF LAW in Support re: 307 MOTION for Summary Judgment

    Filed May 15, 2013

    Therefore, even if, contrary to the evidence presented, there was any inducement by Amersham, “economic interest is a defense to an action for tortious interference with a contract unless there is a showing of malice or illegality.” Foster v. Churchill, 87 N.Y.2d 744, 750 (1996). Amersham had such an economic interest here by virtue of its preexisting business relationship with NEN and there certainly has been no showing of malice or illegality.

  5. The Associated Press v. Meltwater U.S. Holdings, Inc. et al

    MEMORANDUM OF LAW in Support re: 40 MOTION for Judgment on the Pleadings as to Defendants' Counterclaims.. Document

    Filed November 9, 2012

    To state a claim for tortious interference with an existing contract, a plaintiff must allege facts satisfying four elements: (1) the existence of a contract between plaintiff and a third party; (2) defendant’s knowledge of the contract; (3) defendant’s intentional and improper procuring of a breach; and (4) damages resulting therefrom. White Plains Coat & Apron Co. v. Cintas Corp., 8 N.Y.3d 422, 426, 835 N.Y.S.2d 530, 532 (2007); Foster v. Churchill, 87 N.Y.2d 744, 749-50, 642 N.Y.S.2d 583, 586 (1996); Am. Preferred Prescription, Inc. v. Health Mgmt., Inc., 252 A.D.2d 414, 417, 678 N.Y.S.2d 1, 4 (1st Dep’t 1998). To state a claim for intentional interference with business relations, a plaintiff must show that (1) the plaintiff had a business relationship with a third party; (2) the defendant knew of that relationship and intentionally interfered with it; (3) defendant acted solely out of malice or used improper or illegal means that amounted to a crime or independent tort; and (4) defendant’s interference caused injury to the relationship with the third party. Amaranth LLC v. J.P. Morgan Chase & Co., 71 A.D.3d 40, 47, 888 N.Y.S.2d 489, 494 (1st Dep’t 2009) (citing Carvel Corp. v. Noonan, 3 N.Y.3d 182, 189, 785 N.Y.S.2d 359, 361-62 (2004)) (emphasis added).

  6. Quinn v. Jacobs

    MEMORANDUM OF LAW in Opposition re: 14 MOTION to Dismiss Counterclaim -.. Document

    Filed June 26, 2012

    Furthermore, all but one of the cases cited by Quinn which apply the affirmative defense were decided after discovery or trial, confirming that whether the qualified privilege applies is a fact question. See White Plains Coat & Apron, 460 F.3d at 283 (certifying to the New York Court of Appeals after a grant of summary judgment in defendant’s favor whether having an economic interest in soliciting business of a competitor and making a profit was a sufficient right to trigger the economic interest defense); Felsen, 24 N.Y.2d at 685 (reversing jury verdict in favor of plaintiff based on economic privilege defense); Foster, 87 N.Y.2d at 751 (affirming trial court’s judgment after a non-jury trial, finding defendant not liable for tortious interference where defendants did not act outside the scope of their officer duties, were significant stockholders, and were acting in the interest of the company, which was on the brink of insolvency). Accordingly, Quinn’s as yet un-plead affirmative defense based on a qualified privilege cannot be determined on this motion to dismiss, particularly where the counterclaim pleads facts undermining the applicability of that qualified privilege, and raising fact questions with respect thereto.

  7. Bose v. Interclick, Inc.

    MEMORANDUM OF LAW in Support re: 26 MOTION to Dismiss.. Document

    Filed April 18, 2011

    To state a claim for tortious interference with contract, Plaintiff must allege facts establishing “(1) the existence of a valid contract between plaintiff and a third party; (2) the defendant’s knowledge of that contract; (3) the defendant’s intentional procuring of the breach and (4) damages.” Foster v. Churchill, 87 N.Y.2d 744, 749-50 (1996). Plaintiff’s vague and conclusory allegations do not satisfy these required elements.

  8. Feist v. RCN Corporation et al

    MEMORANDUM OF LAW in Support re: 47 MOTION to Dismiss

    Filed February 27, 2012

    65/89, 1991 WL 284454 (N.Y. Sup. Ct. N.Y. Cnty. Dec. 23, 1991) 24 Cofacredit S.A. v. Windsor Plumbing Supply Co., 187 F.3d 229 (2d Cir. 1999) 24, 25 Cunningham v. Hagedorn, 72 A.D.2d 702 (1st Dep't 1979) 24 Combina Inc. v. Iconic Wireless Inc., No. 4222/2011, 2011 WL 3518185 (N.Y. Sup. Ct. Kings Cnty. Aug. 11, 2011) 16 D.A. Collins Constr. Co. v. ICOS/NCCA a Joint Venture, No. 91-933, 1994 WL 328626 (N.D.N.Y June 28, 1994) 19, 20 Diario El Pais, S.L. v. Nielsen Co., No. 07-11295, 2008 WL 4833012 (S.D.N.Y Nov. 6, 2008) 15, 21 Dillon v. City of 1V. Y., 261 A.D.2d 34 (1st Dep't 1999) 6 Case 1:11-cv-05436-JGK Document 48 Filed 02/27/12 Page 4 of 34 Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) 23 Flash Elecs., Inc. v. Universal Music & Video Distrib. Corp., 312 F. Supp. 2d 379 (E.D.N.Y. 2004) 16, 17 Floyd Harbor Animal Hosp. v. Doran, No. 06-18109, 2009 N.Y. Misc. LEXIS 5610 (N.Y. Sup. Ct. Suffolk Cnty. Dec. 3, 2009) 12 Foster v. Churchill, 87 N.Y.2d 744 (1996) 20 Friedman v. Coldwater Creek, Inc., 321 F. App'x 58 (2d Cir. 2009) 18 Friends of Rockland Shelter Animals, Inc. (FORSA) v. Mullen, 313 F. Supp. 2d 339 (S.D.N.Y. 2004) 22 Geddes v. Princess Props. Int'll, Ltd., 88 A.D.2d 835 (1st Dep't 1982) 8 Gianni Versace, S.p.A. v. Versace, No. 01-9645, 2003 WL 470340 (S.D.N.Y. Feb. 25, 2003) 18 Goldstein v. Siegel, 19 A.D.2d 489 (1st Dep't 1963) 24 Gristedes Foods, Inc. v. Poospatuck (Unkechauge) Nation, No. 06-1260, 2009 WL 4547792 (E.D.N.Y. Dec. 1, 2009) 15 I.G. Second Generation Partners, L.P. v. Duane Reade, 17 A.D. 3d 206 (1st Dep't 2005) 22 Jackson Hill Rd. Sharon CT, LLC v. Town of Sharon, No. 07-1445, 2010 WL 2596927 (D. Conn. June 24, 2010) 22 John R. Loftus, Inc. v. White, 150 A.D.2d 857 (3d Dep't 1989) 19 Jones v. SmithKlineBeecham, No. 07-0033, 2007 U.S. Dist. LEXIS 59980 (N.D.N.Y Aug. 14, 2007) 14

  9. Feist v. RCN Corporation et al

    MEMORANDUM OF LAW in Support re: 12 MOTION to Dismiss Paxfire's Counterclaims.. Document

    Filed September 26, 2011

    "substantial overtone . . . to warrant an inference that [the] suit 7 Furthermore, Ms. Feist is permitted to procure a breach of contract—although she plainly did not "in the exercise of equal or superior right." Foster v. Churchill, 87 N.Y.2d 744, 750-51 (1996) (cited by White Plains Coat & Apron Co. v. Cintas Corp., 460 F.3d 281, 283 (2d. Cir. 2006)); see also Aetna Cas. and Sur. Co. v. Aniero Concrete Co., 404 F.3d 566, 589 (2d. Cir. 2005) ("A claim for tortious interference with contract cannot rest on conduct that is 'incidental to some other lawful purpose.'") (citations omitted). Ms. Feist's intention to protect her privacy and control who possesses and views her personal, valuable search information is "just cause" for her investigation and ifling of litigation, even if it results in the breach of a contract.

  10. Chevron Corporation v. Donziger et al

    MEMORANDUM OF LAW in Support re: 4 Order to Show Cause,,,,. Document

    Filed February 5, 2011

    .. 51 Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008) ......................................................................................................... 3 Dow Jones & Co. v. Harrods, Ltd., 237 F. Supp. 2d 394 (S.D.N.Y. 2002), aff’d 346 F.3d 357 (2d Cir. 2003)......................... 58, 59 Drobbin v. Nicolet Instrument Corp., 631 F. Supp. 860 (S.D.N.Y. 1986) ........................................................................................... 69 Duane Reade Inc. v. St. Paul Fire & Marine Ins. Co., 411 F.3d 384 (2d Cir. 2005) ..................................................................................................... 59 eBay, Inc. v. Bidder’s Edge, 100 F. Supp. 2d 1058 (N.D. Cal. 2000) .................................................................................... 55 Farrell Lines Inc. v. Columbus Cello-Poly Corp., 32 F. Supp. 2d 118 (S.D.N.Y. 1997) ........................................................................................ 56 Foster v. Churchill, 665 N.E.2d 153 (N.Y. 1996)..................................................................................................... 53 Garcia v. Berkshire Life Ins. Co. of Am., 569 F.3d 1174 (10th Cir. 2009) .......................................................................................... 51, 61 Georgia v. Pa. R.R. Co., 324 U.S. 439 (1945).................................................................................................................. 56 Griffin v. Griffin, 327 U.S. 220 (U.S. 1946).......................................................................................................... 64 H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229 (1989).................................................................................................................. 48 Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944)............................................................................................................ 50, 70 Hemi Group, LLC v. City of New York, 130