| Pink v Half Moon Coop. Apts., S., Inc. |
| 2009 NY Slip Op 09013 [68 AD3d 739] |
| December 1, 2009 |
| Appellate Division, Second Department |
| John Pink, Respondent, v Half Moon CooperativeApartments, South, Inc., et al., Appellants. |
—[*1] The Law Offices of Neal Brickman, P.C., New York, N.Y. (Melinda Dus of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of fiduciary duty and tortiousinterference with a contract, the defendants appeal from an order of the Supreme Court,Westchester County (Lefkowitz, J.), entered July 17, 2008, which denied their motion forsummary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
The plaintiff, a tenant-shareholder of the defendant cooperative housing corporation(hereinafter the co-op), requested the co-op to execute a recognition agreement approving theencumbrance of his shares in the co-op as security for a business loan by a third party to a jointventure in which the plaintiff was a participant. The co-op refused to execute the recognitionagreement. The plaintiff commenced the instant action against the co-op and its board ofdirectors to recover damages, inter alia, for breach of fiduciary duty and tortious interferencewith contract. The Supreme Court denied the defendants' motion for summary judgmentdismissing the complaint. We reverse.
The defendants met their burden of establishing their prima facie entitlement to judgment asa matter of law with respect to the cause of action alleging breach of fiduciary duty bydemonstrating that their determination not to sign the recognition agreement was made "in goodfaith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporatepurposes" (Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 538[1990] [internal quotation marks omitted]). In opposition to the defendants' showing in thisregard, the plaintiff failed to raise a triable issue of fact as to whether the co-op's board ofdirectors acted (1) outside the scope of its authority, (2) in a way that did not legitimately furtherthe corporate purpose, or (3) in bad faith (see 40 W. 67th St. v Pullman, 100 NY2d 147,155 [2003]). Accordingly, that branch of the defendants' motion which was for summaryjudgment dismissing the cause of action alleging breach of [*2]fiduciary duty should have been granted.
Further, those branches of the defendants' motion which were for summary judgmentdismissing the causes of action alleging tortious interference with an existing contract, tortiousinterference with a prospective contract, and tortious interference with a prospective businessrelationship should also have been granted, as the defendants demonstrated their prima facieentitlement to judgment as a matter of law and the plaintiff, in opposition, failed to raise a triableissue of fact (see generally CPLR 3212 [b]).
In order to succeed on a cause of action alleging tortious interference with an existingcontract, the plaintiff must establish: (1) the existence of a valid contract between it and a thirdparty, (2) the defendants' knowledge of that contract, (3) the defendants' intentional procurementof the third party's breach of that contract without justification, and (4) damages (see LamaHolding Co. v Smith Barney, 88 NY2d 413, 424 [1996]; Foster v Churchill, 87NY2d 744, 749-750 [1996]). Even if there were a valid, existing contract of which thedefendants had knowledge, the defendants demonstrated that their decision to refuse theplaintiff's request for permission to finance a business venture by pledging his shares in theco-op as collateral for a business loan was not without justification. The plaintiff failed to raise atriable issue of fact in opposition to this showing.
Moreover, the defendants established their prima facie entitlement to judgment as a matter oflaw with respect to the causes of action alleging tortious interference with a prospective contractand tortious interference with a prospective business relationship. The defendants demonstratedthat, to the extent that any of their conduct interfered with the plaintiff's prospective businessrelationship with his coventurers in the development and production of a television program pilotepisode, they were acting to protect the co-op's interests, and not for the sole purpose of harmingthe plaintiff (see Carvel Corp. vNoonan, 3 NY3d 182, 190 [2004]; Guard-Life Corp. v Parker Hardware Mfg.Corp., 50 NY2d 183, 191 [1980]; Newport Serv. & Leasing, Inc. v Meadowbrook Distrib. Corp., 18AD3d 454, 455 [2005]; Lerman v Medical Assoc. of Woodhull, 160 AD2d 838, 839[1990]). In opposition to the branches of the motion addressed to those causes of action, theplaintiff failed to submit evidence sufficient to raise a triable issue of fact. The plaintiff'srepeated allegations, without any evidence, that the defendants acted improperly andunreasonably are merely speculation, and insufficient to defeat summary judgment with respectto those causes of action (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]).
The defendants' remaining contentions are without merit or need not be reached in light ofour determination. Skelos, J.P., Florio, Balkin and Leventhal, JJ., concur.