| Schmidt & Schmidt, Inc. v Town of Charlton |
| 2009 NY Slip Op 09127 [68 AD3d 1314] |
| December 10, 2009 |
| Appellate Division, Third Department |
| Schmidt & Schmidt, Inc., Appellant, v Town of Charlton et al.,Defendants, and J. Paul Vosburgh Architect, P.C., Respondent. |
—[*1] Harter, Secrest & Emery, L.L.P., Rochester (James C. Moore of counsel), forrespondent.
Peters, J.P. Appeal from that part of a judgment of the Supreme Court (Ferradino, J.),entered September 17, 2008 in Saratoga County, which granted the motion of defendant J. PaulVosburgh Architect, P.C. to dismiss plaintiff's fifth cause of action.
Defendant J. Paul Vosburgh Architect, P.C. (hereinafter defendant) contracted withdefendant Town of Charlton to serve as the architect and project administrator in connectionwith the construction of the Town's new town hall. Plaintiff was hired by the Town to providegeneral construction work for the project, but was terminated prior to the completion ofconstruction. Defendant had recommended such action due to plaintiff's failure to supply enoughproperly skilled workers or proper materials and its failure to perform its work on the project.
Plaintiff commenced this action against defendant, the Town and the Town's representative,defendant AKW Consulting, Inc., alleging, among other things, a cause of action againstdefendant for tortious interference with its contract with the Town. Following joinder of issue,Supreme Court granted defendant's motion to dismiss the complaint against it for failure to [*2]state a cause of action. Plaintiff appeals, challenging only that partof Supreme Court's judgment as dismissed its cause of action against defendant for tortiousinterference with contract.
As this case comes to us in the posture of a motion to dismiss pursuant to CPLR 3211 (a) (7),we "must afford the pleadings a liberal construction, take the allegations of the complaint as trueand provide [the] plaintiff the benefit of every possible inference" (EBC I, Inc. v Goldman, Sachs & Co.,5 NY3d 11, 19 [2005]; see Alaimov Town of Fort Ann, 63 AD3d 1481, 1482 [2009]). Moreover, we "may freely consideraffidavits submitted by the plaintiff to remedy any defects in the complaint," since the ultimate "'criterion is whether the proponent of the pleading has a cause of action, not whether he [or she]has stated one' " (Leon v Martinez, 84 NY2d 83, 88 [1994], quoting Guggenheimer vGinzburg, 43 NY2d 268, 275 [1977]; see IMS Engrs.-Architects, P.C. v State of New York, 51 AD3d1355, 1356 [2008], lv denied 11 NY3d 706 [2008]). Evaluating the complaint andplaintiff's submissions in this light, we find that Supreme Court erred in dismissing its cause ofaction premised on tortious interference with contract.
To sustain such a claim, a party "must show the existence of its valid contract with a thirdparty, defendant's knowledge of that contract, defendant's intentional and improper procuring ofa breach, and damages" (White PlainsCoat & Apron Co., Inc. v Cintas Corp., 8 NY3d 422, 426 [2007]; see ClearmontProp., LLC v Eisner, 58 AD3d 1052, 1055 [2009]). However, where, as here, an agent isalleged to have induced its principal to breach a contract, the agent cannot be found liable unlessit "does not act in good faith and commits independent torts or predatory acts directed at anotherfor personal pecuniary gain" (BIB Constr. Co. v City of Poughkeepsie, 204 AD2d 947,948 [1994]; see Murtha v Yonkers Child Care Assn., 45 NY2d 913, 915 [1978]; Bradbury v Cope-Schwarz, 20 AD3d657, 659 [2005]).
In its complaint, plaintiff alleged that defendant maliciously, and for its own benefit,impeded and interfered with its contract with the Town by making arbitrary and erroneousdeterminations with respect to the requirements of the contract and recommending thetermination of the contract without just cause or reasonable grounds. Plaintiff's president averredthat defendant intentionally delayed its response, failed to respond or otherwise providedambiguous responses to multiple requests for interpretation and submittals of proposed work,thereby hindering plaintiff's performance of the contract and ultimately bringing construction toa "halt." He further averred that defendant falsely blamed plaintiff for problems and delays onthe project in order to "deflect attention from [defendant's] original design error and omission."Moreover, plaintiff alleged that defendant stands to gain more than $250,000 as a result of itswrongful termination, and thus had a pecuniary incentive to see that plaintiff was terminated. Insupport, plaintiff submitted a letter from the Town to plaintiff's surety indicating that defendanthas proposed a fee of more than $250,000 for additional services rendered through completion ofthe project. Taken as true and construed liberally, the alleged conduct on the part of defendant issufficient to state a cognizable claim for tortious interference with contract (see BIB Constr.Co. v City of Poughkeepsie, 204 AD2d at 948; Bank of N.Y. v Berisford Intl., 190AD2d 622, 622 [1993]; compare FirstAm. Commercial Bancorp, Inc. v Saatchi & Saatchi Rowland, Inc., 55 AD3d 1264,1267 [2008], lv denied 57 AD3d 1531 [2008], lv dismissed and denied 12 NY3d829 [2009]; Bradbury v Cope-Schwarz, 20 AD3d at 659).
Rose, Kane, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment is modified, onthe law, with costs to plaintiff, by reversing so much thereof as granted the motion of defendantJ. Paul Vosburgh Architect, P.C. to dismiss plaintiff's fifth cause of action; said motion denied tothat extent; and, as so modified, affirmed.