| Meridian Capital Partners, Inc. v Fifth Ave. 58/59 Acquisition Co.LP |
| 2009 NY Slip Op 01586 [60 AD3d 434] |
| March 5, 2009 |
| Appellate Division, First Department |
| Meridian Capital Partners, Inc., Appellant, v Fifth Avenue58/59 Acquisition Co. LP, Respondent, et al., Defendants. |
—[*1] Stempel Bennett Claman & Hochberg, P.C., New York (Richard L. Claman of counsel), forrespondent.
Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered September 27,2007, which, insofar as appealed from as limited by the briefs, granted defendant landlord'smotion to dismiss plaintiff tenant's tenth cause of action for "intentional and malicious inflictionof injury to business," unanimously affirmed, without costs.
The tenth cause of action alleges that landlord's unreasonable interference with tenant's useof the leased premises was intended to coerce tenant into surrendering its valuable commercialleasehold and paying an exorbitant termination fee; that "disinterested malevolence" motivateddefendant landlord's interference; that interference was to further a plan of "maliciousretribution" to punish tenant for refusing to agree to an early surrender of the lease that wouldhave permitted landlord to lease the space "at a substantially greater profit"; and that tenant's rentfor the space, the most valuable on the floor, is "substantially below the level at which [landlord]is currently leasing comparable space" in the building.
Contrary to tenant's contention, Banc of Am. Sec. LLC v Solow Bldg. Co. II, L.L.C. (47 AD3d 239[2007]) did not recognize a new tort of intentional infliction of economic harm (see Kronos,Inc. v AVX Corp., 81 NY2d 90, 93 n 1 [1993] ["Intentional infliction of economic harm hasnot been recognized in New York"]). Our inquiry in Banc of Am. Sec. was limited towhether, in connection with a cause of action for breach of contract, the landlord's alleged actsconstituted the type of intentional wrongdoing, unrelated to any legitimate economicself-interest, that could render an exculpatory clause in the lease unenforceable as a matter ofpublic policy. We held that a trier of fact could so perceive the landlord's acts, in which event theexculpatory clause would be unenforceable, and that the tenant therefore had a cause of actionfor breach of contract.
Nor does the tenth cause of action plead prima facie tort. Tenant's allegation of landlord's"disinterested malevolence" is contrary to its allegation of landlord's profit motive in [*2]coercing surrender of the lease (see Squire Records v VanguardRecording Socy., 25 AD2d 190, 191-192 [1966], affd 19 NY2d 797 [1967]).Moreover, tenant has a cause of action for breach of contract for the acts allegedly committed(see Effective Communications W. v Board of Coop. Educ. Servs. of Sole Supervisory Dist.of Cattaraugus, Erie & Wyoming Counties, 57 AD2d 485, 490 [1977]). Dismissal of thetenth cause of action requires dismissal of the accompanying demand for punitive damages(Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 616-617 [1994]). Wehave considered plaintiff's other arguments and find them unavailing. Concur—Tom, J.P.,Moskowitz, Renwick and Freedman, JJ. [See 2007 NY Slip Op 33035(U).]