| Rosenfeld v Sayers |
| 2008 NY Slip Op 04853 [51 AD3d 998] |
| May 27, 2008 |
| Appellate Division, Second Department |
| Eric Rosenfeld, Appellant, v Mark H. Sayers et al.,Respondents. |
—[*1] Proskauer Rose LLP, New York, N.Y. (Peter J. W. Sherwin, Matthew J. Morris, and PatrickJ. Dempsey of counsel), and McCabe & Mack, LLP, Poughkeepsie, N.Y. (Albert M. Rosenblattand Richard R. DuVall of counsel), for respondents (one brief filed).
In an action to recover damages for breach of fiduciary duty and tortious interference withcontract, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Dolan, J.),dated October 16, 2007, which granted the defendants' motion pursuant to CPLR 3211 (a) (7) todismiss the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the defendants' motion pursuant to CPLR 3211 (a) (7) which was to dismiss the firstcause of action alleging tortious interference with contract and substituting therefor a provisiondenying that branch of the motion; as so modified, the order is affirmed, without costs ordisbursements.
In his complaint, the plaintiff alleged that nonparty Corpus Christi Associates (hereinafterCorpus Christi), a limited partnership, executed and delivered to nonparty Vernon Young a notein the sum of $5,000,000. The plaintiff further alleged that Young immediately assigned the noteto the plaintiff and the defendant Theodore R. Sayers "jointly."
In addition, the plaintiff alleged in his complaint that the defendant Paramount LouisianaRealty Corp. (hereinafter Paramount), which Theodore R. Sayers and the defendant Mark H.Sayers had "complete control of," was Corpus Christi's sole general partner. The plaintiff allegedthat [*2]although he was a coholder of the note, Theodore R.Sayers and Mark H. Sayers caused Paramount to direct Corpus Christi to make payments underthe note only to themselves.
In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court should "acceptthe facts as alleged in the complaint as true, accord plaintiffs the benefit of every possiblefavorable inference, and determine only whether the facts as alleged fit within any cognizablelegal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Applying these principles,the Supreme Court erred in dismissing the plaintiff's first cause of action, which sufficientlypleaded a cause of action to recover damages for tortious interference with contract (seeWhite Plains Coat & Apron Co., Inc. v Cintas Corp., 8 NY3d 422, 426 [2007]; Kronos,Inc. v AVX Corp., 81 NY2d 90, 94 [1993]).
The plaintiff's remaining contentions are without merit. Mastro, J.P., Rivera, Angiolillo andMcCarthy, JJ., concur.