| Rochester Linoleum & Carpet Ctr., Inc. v Cassin |
| 2009 NY Slip Op 02880 [61 AD3d 1201] |
| April 16, 2009 |
| Appellate Division, Third Department |
| Rochester Linoleum and Carpet Center, Inc., Doing Business asRochester Flooring Resource, Appellant-Respondent, v Ronald Cassin, Respondent, and LaneBrettschneider et al., Respondents-Appellants. |
—[*1] Law Office of Martin Silver, P.C., Hauppauge (Eric H. Holtzman of counsel), for respondentand respondents-appellants.
Malone Jr., J. Cross appeals from an order of the Supreme Court (McNamara, J.), enteredJanuary 8, 2008 in Albany County, which partially granted defendants' motion to dismiss thecomplaint and/or for summary judgment.
Plaintiff sold and installed commercial flooring products manufactured by MohawkIndustries, Inc. In order to obtain a special rate, state agencies must purchase those products fromdealers designated by Mohawk, and plaintiff was a specified dealer for the State University ofNew York at Stony Brook (hereinafter SUNY Stony Brook). Defendant Ronald Cassin workedfor plaintiff, providing service to customers, including SUNY Stony Brook, and attempting toexpand plaintiff's business.[*2]
In January 2006, Cassin left plaintiff's employ afterdiscussions with defendant Lane Brettschneider, a principal of defendants Lane's CommercialCarpets North, Inc. (hereinafter referred to as LCCN) and Lane's Commercial Carpets North II,Inc. (hereinafter referred to as LCCN II). Cassin went to work for one or more of those principalsor entities. In the months that followed, LCCN was added and plaintiff was dropped as aspecified dealer for SUNY Stony Brook. As a result, SUNY Stony Brook purchased Mohawkflooring products from LCCN.
Plaintiff thereafter commenced this action against Cassin, Brettschneider, LCCN and LCCNII. The complaint, as amended, asserted claims for wrongful interference with prospectiveeconomic advantage (first cause of action), unfair competition (third and fourth causes ofaction), prima facie tort (fifth cause of action) and punitive damages (sixth cause of action).Plaintiff also asserted that Cassin breached his duty of loyalty as an employee (second cause ofaction). Defendants moved to dismiss the complaint and/or for summary judgment. SupremeCourt granted the motion in part, dismissing the first claim against Cassin and the remainingclaims in full. Plaintiff appeals[FN1]and Brettschneider, LCCN and LCCN II (hereinafter collectively referred to as defendants)cross-appeal.
We affirm. Initially, a motion to dismiss or one for summary judgment may be stayed ordenied pending further discovery (see CPLR 3211 [d]; 3212 [f]). To obtain such relief,plaintiff was obliged to provide some evidentiary basis for its claim that further discovery wouldyield material evidence and also "demonstrate how further discovery might reveal material factsin the movant's exclusive knowledge" (Scofield v Trustees of Union Coll. in Town ofSchenectady, 267 AD2d 651, 652 [1999]; see Zinter Handling, Inc. v Britton, 46 AD3d 998, 1001 [2007]).Here, plaintiff provides nothing beyond speculation that further discovery would yield materialevidence. Also, plaintiff could have obtained any such evidence from other sources. Mohawk,for example, is in the best position to explain why it altered the list of specified dealers forSUNY Stony Brook. Plaintiff could also rely on its own records to discover whether Cassinbreached his duty of loyalty (see Chemfab Corp. v Integrated Liner Tech., 263 AD2d788, 790 [1999]). Thus, we are unpersuaded that further discovery is needed prior to decidingdefendants' motion.
Turning to the first cause of action, we do not agree with defendants that it fails to state aclaim. Accepting the complaint's allegations as true, the first claim sufficiently alleges thatdefendants used wrongful or unlawful means to obtain a competitive advantage over plaintiff andthat plaintiff would have consummated a contract with SUNY Stony Brook but for defendants'interference (see B-S Indus. Contrs. v Burns Bros. Contrs., 256 AD2d 963, 965[1998]).[FN2]Nor were defendants entitled to summary judgment on the first claim, as the motion papers didnot address their actions in any detail. Their failure to meet their initial burden on a summaryjudgment motion required denial (see Winegrad v New York Univ. Med. Ctr., 64 NY2d851, 853[*3][1985]).
With regard to Cassin, his affidavit amply demonstrated that he did not "use . . .wrongful or unlawful means to secure a[n] . . . advantage over plaintiff[ ]"(NBT Bancorp v Fleet/Norstar Fin. Group, 215 AD2d 990, 990 [1995], affd 87NY2d 614 [1996]).[FN3]In response, plaintiff alleged that Cassin solicited Mohawk and influenced its decision to removeplaintiff as a specified dealer for SUNY Stony Brook, but persuasion alone does not constitutewrongful or unlawful means (see CarvelCorp. v Noonan, 3 NY3d 182, 191 [2004]; Guard-Life Corp. v Parker HardwareMfg. Corp., 50 NY2d 183, 191 [1980]). Moreover, plaintiff's conclusory assertions thatCassin engaged in other wrongful or unlawful conduct are insufficient to raise a materialquestion of fact and summary judgment for Cassin was appropriate (see Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]).
Regarding the second claim, Cassin stated that he did not have any discussions with theprincipals of LCCN or LCCN II or otherwise decide to leave plaintiff's employment until the daybefore he told his supervisor of his decision, making it difficult to perceive how he could havebreached his duty of loyalty to plaintiff (see Chemfab Corp. v Integrated Liner Tech.,263 AD2d at 789). Regardless, an employee "may secretly incorporate a competitive businessprior to his departure as long as he does not use his principal's time, facilities or proprietarysecrets to build the competing business" (Maritime Fish Prods. v World-Wide FishProds., 100 AD2d 81, 88 [1984], appeal dismissed 63 NY2d 675 [1984]; seeMega Group v Halton, 290 AD2d 673, 675 [2002]). Cassin denied doing anything of thissort and plaintiff's nonspecific and conclusory assertions did not raise a material question of fact(see Beverage Mktg. USA, Inc. v SouthBeach Beverage Co., Inc., 58 AD3d 657, 658 [2009]).
Plaintiff's remaining arguments can be briefly disposed of. Although plaintiff's unfaircompetition claims may rest upon the misappropriation of confidential information, there is nocompetent evidence in the record to suggest that such a misappropriation occurred (seeChemfab Corp. v Integrated Liner Tech., 263 AD2d at 790). As for the punitive damagesclaim, such was improperly stated as a separate cause of action and was appropriately dismissed(see Martin v Columbia GreeneHumane Socy., Inc., 17 AD3d 839, 841 [2005]; Pileckas v Trzaskos, 126 AD2d926, 927 [1987], lv denied 70 NY2d 601 [1987]).
Mercure, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Plaintiff does not address thedismissal of the fifth claim in its brief and any issue in that regard is deemed abandoned (see Rosenblatt v Wagman, 56 AD3d1103, 1104 n [2008]).
Footnote 2: Contrary to defendants'contention, the pleading specificity requirement of CPLR 3016 (a) does not apply here, as thecomplaint does not assert a claim for defamation and alleges wrongful conduct beyonddefamatory statements.
Footnote 3: An exception to the wrongful orunlawful means requirement exists where defendants acted solely with the intent to inflict harmupon plaintiff, but such is inapplicable given plaintiff's admission that the goal of Cassin anddefendants was "to divert business opportunities" to themselves (see Carvel Corp. v Noonan, 3 NY3d182, 190-191 [2004]; NBT Bancorp v Fleet/Norstar Fin. Group, 215 AD2d at 993).