| Lyons v Menoudakos & Menoudakos, P.C. |
| 2009 NY Slip Op 04872 [63 AD3d 801] |
| June 9, 2009 |
| Appellate Division, Second Department |
| Laura Lyons et al., Respondents, v Menoudakos &Menoudakos, P.C., Defendant, and Peter Menoudakos, Jr.,Appellant. |
—[*1] Arthur Lewis, Franklin Square, N.Y. (Helman R. Brook of counsel), forrespondents.
In an action, inter alia, to recover damages for tortious interference with prospectivecontractual relations, the defendant Peter Menoudakos, Jr., appeals from so much of an order ofthe Supreme Court, Nassau County (Parga, J.), dated November 14, 2007, as denied that branchof his motion which was for summary judgment dismissing the fourth cause of action for tortiousinterference with prospective contractual relations insofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, with costs.
To establish a claim of tortious interference with prospective contractual relations, theplaintiff must prove that the defendant engaged in culpable conduct which interfered with aprospective contractual relationship between the plaintiff and a third party (see NBT Bancorpv Fleet/Norstar Fin. Group, 87 NY2d 614, 621 [1996]; Smith v Meridian Tech., Inc., 52 AD3d 685 [2008]). As a generalrule, such culpable conduct must amount to a crime or an independent tort, and may include"[w]rongful means," defined as "physical violence, fraud or misrepresentation, civil suits andcriminal prosecutions, and some degrees of economic pressure . . . . [M]ereknowing persuasion would not be sufficient" (Guard-Life Corp. v Parker Hardware Mfg.Corp., 50 NY2d 183, 191, 196 [1980]; see Carvel Corp. v Noonan, 3 NY3d 182, 190-193 [2004];Smith v Meridian Tech., Inc., 52 AD3d at 687).
The defendant Peter Menoudakos, Jr. (hereinafter the defendant), as the attorney for theseller of real property, had an ethical obligation to avoid a personal interest in the transactionwhich might affect his professional judgment on behalf of his client (see Code ofProfessional Responsibility DR 5-101 [a] [22 NYCRR 1200.20 (a)]; Code of ProfessionalResponsibility DR 5-104 [a] [22 NYCRR 1200.23 (a)]). Evidence of a violation of a disciplinaryrule is relevant to the question of tort liability (see Tabner v Drake, 9 AD3d 606, 610 [2004]; WilliamKaufman Org. v Graham & James, 269 AD2d 171, 173 [2000]). Moreover, a fiduciary'spersonal interest in a transaction constitutes evidence of self-dealing or breach of fiduciary duty(see Dubbs v Stribling & Assoc., 96 NY2d 337, 340 [2001]; Queens Structure Corp.v Jay Lawrence Assoc., 304 AD2d 736 [2003]; Matter of Goldstein v Department ofState, Div. of Licensing Servs., 144 AD2d 463, 464 [1988]).
The defendant failed to make a prima facie showing of his entitlement to judgment as a [*2]matter of law on the cause of action seeking to recover damages fortortious interference with prospective contractual relations (see Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]). The evidence he submitted on this issue failed toeliminate the existence of a triable issue as to whether his professional judgment was affected byhis personal business interests in wishing to purchase the real property, and whether he furtheredsaid interests by making misrepresentations to the seller about the creditworthiness of theplaintiff Laura Lyons, thereby wrongfully interfering with the transaction (see Smith v Meridian Tech., Inc., 52AD3d 685 [2008]; cf. Carvel Corp.v Noonan, 3 NY3d 182 [2004]). Accordingly, the Supreme Court properly denied thatbranch of his motion regardless of the sufficiency of the plaintiffs' opposition papers (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Mastro, J.P., McCarthy,Leventhal and Belen, JJ., concur.