| Emergency Enclosures, Inc. v National Fire Adj. Co., Inc. |
| 2009 NY Slip Op 09750 [68 AD3d 1658] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| Emergency Enclosures, Inc., Appellant-Respondent, v NationalFire Adjustment Co., Inc., Appellant, and Master Care Restoration, Inc., Respondent. (AppealNo. 1.) |
—[*1] Fix Spindelman Brovitz & Goldman, P.C., Fairport (Roy Z. Rotenberg of counsel), fordefendant-appellant. E. Robert Fussell P.C., Le Roy (E. Robert Fussell of counsel), fordefendant-respondent.
Appeals from an order of the Supreme Court, Monroe County (John J. Ark, J.), entered May13, 2008. The order granted the motion of defendant Master Care Restoration, Inc. to dismiss thecomplaint against it, denied plaintiff's cross motion for leave to amend the complaint, grantedplaintiff's motion to dismiss the counterclaim, and denied the cross motion of defendant NationalFire Adjustment Co., Inc. for leave to amend the counterclaim.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action alleging, inter alia, that defendants, MasterCare Restoration, Inc. (Master Care) and National Fire Adjustment Co., Inc. (NFA), conspired toinjure plaintiff's business prospects and to interfere with plaintiff's contractual relationships.Plaintiff is in the business of securing, cleaning and repairing property damaged as a result offire or weather-related disasters. Master Care is a competing provider of such services, and NFAis a firm that assists individuals and companies with fire losses in negotiations with theirinsurers. Plaintiff asserted nine causes of action for, inter alia, prima facie tort, tortiousinterference with business opportunity, unfair competition, injurious falsehood and defamation.It attached several documents to the complaint, including a letter sent by Master Care to theMonroe County Executive indicating that an unnamed competitor was claiming an affiliationwith local fire departments in order to gain an unfair advantage in accessing fire scenes andsoliciting clients. Plaintiff also attached a brochure distributed by Master Care that refers to a "'board-up guy,' " who, according to Master Care, overcharges for emergency enclosure services.NFA asserted a counterclaim for defamation, alleging that plaintiff willfully and maliciously sent[*2]a copy of the complaint, which contains false information, toa local newspaper for the purpose of damaging NFA's reputation and business.
By the order in appeal No. 1, Supreme Court granted the motion of Master Care to dismissthe complaint against it pursuant to CPLR 3211 (a) (7); denied plaintiff's cross motion for leaveto amend the complaint; granted plaintiff's motion to dismiss the counterclaim; and deniedNFA's cross motion for leave to amend the counterclaim.
Contrary to plaintiff's contention in appeal No. 1, Supreme Court properly granted MasterCare's motion. With respect to the cause of action for prima facie tort, insofar as it is assertedagainst Master Care, and the cause of action for injurious falsehood, asserted only against MasterCare, we conclude that plaintiff failed to plead special damages with sufficient particularity, anessential element of both causes of action (see Epifani v Johnson, 65 AD3d 224, 233 [2009]; L.W.C.Agency v St. Paul Fire & Mar. Ins. Co., 125 AD2d 371, 373 [1986]). "In pleading specialdamages, actual losses must be identified and causally related to the alleged tortious act"(L.W.C. Agency, 125 AD2d at 373; see Ginsberg v Ginsberg, 84 AD2d 573, 574[1981]). "[G]eneral allegations of lost sales from unidentified lost customers are insufficient"(DiSanto v Forsyth, 258 AD2d 497, 498 [1999]), and plaintiff failed to plead therequisite causal relationship between the alleged special damages and any specific action byMaster Care (see Smukler v 12 Lofts Realty, 156 AD2d 161, 163 [1989], lvdenied 76 NY2d 701 [1990]). With respect to the prima facie tort cause of action, plaintiffalso failed to allege that "a disinterested malevolence to injure plaintiff constitute[d] the solemotivation for [Master Care's] otherwise lawful [conduct]" (Great Am. Trucking Co. vSwiech, 267 AD2d 1068, 1069 [1999] [internal quotation marks omitted]; see Backus vPlanned Parenthood of Finger Lakes, 161 AD2d 1116, 1117 [1990]).
With respect to the cause of action for tortious interference with business opportunity,asserted only against Master Care, plaintiff alleged that Master Care's letter to the MonroeCounty Executive disparaged plaintiff and interfered with prospective contractual relationships."Where . . . the alleged interference was with prospective contractual relationships,rather than existing contracts, 'a plaintiff must show that the defendant interfered with theplaintiff's business relationships either with the sole purpose of harming the plaintiff or by meansthat were unlawful or improper' " (Outof Box Promotions, LLC v Koschitzki, 55 AD3d 575, 577 [2008]). According to theallegations in the complaint, Master Care was plaintiff's competitor, and we thus concludetherefrom that the distribution of the letter by Master Care was intended, at least in part, toadvance its competing business interests. Inasmuch as Master Care's actions "cannot becharacterized as 'solely malicious,' " and Master Care did not employ wrongful means, i.e., "'fraudulent representations, threats, or a violation of a duty of fidelity owed to the plaintiff byreason of a confidential relationship,' " we conclude that plaintiff failed to state a cause of actionfor tortious interference with business opportunity (Out of Box Promotions, 55 AD3d at577; see Fantaco Enters. v Iavarone, 161 AD2d 875, 877 [1990]).
Plaintiff also failed to state a cause of action against Master Care for a violation of GeneralBusiness Law § 349. The gravamen of the complaint is not consumer injury or harm to thepublic interest but, rather, harm to plaintiff's business (see Gucci Am., Inc. v Duty FreeApparel, Ltd., 277 F Supp 2d 269, 273 [2003]), and plaintiff failed to allege actual injury(see Smith v Chase Manhattan Bank, USA, 293 AD2d 598, 599 [2002]). In addition, thebare allegations set forth in the cause of action for unfair competition, insofar as it is assertedagainst Master Care, lack the requisite elements to support such a cause of action (see EagleComtronics v Pico Prods., 256 AD2d 1202, 1203 [1998], lv denied 688 NYS2d 372[1999]).
In the cause of action for defamation, asserted only against Master Care, plaintiff failed toset forth the allegedly defamatory statements in the complaint (see CPLR 3016 [a]; see also [*3]Keeler v Galaxy Communications, LP, 39 AD3d 1202[2007]). Although plaintiff alleged in a conclusory manner that defamatory statements wereincluded in the letter sent by Master Care to the Monroe County Executive and in its brochure,plaintiff failed to sufficiently allege that the letter and brochure, which did not name plaintiff,were " 'of and concerning' " plaintiff (Jackson v Quinn, 187 AD2d 1040, 1041 [1992],lv denied 81 NY2d 706 [1993]; see Lenz Hardware v Wilson, 263 AD2d 632,633 [1999], affd 94 NY2d 913 [2000]). Moreover, it is well settled that "[a] person'sstatements of opinion are constitutionally protected" (Boulos v Newman, 302 AD2d 932,932 [2003]), and "[m]ere allegations, rather than objective statements of fact, are not actionable"(id. at 933). Thus, even assuming, arguendo, that the "competitor[ ]" referenced in theletter and the " 'board-up guy' " referenced in the brochure pertain to plaintiff, we conclude thatthe statements constitute "nonactionable opinion" (id. at 933).
Inasmuch as plaintiff failed to state a cause of action with respect to any of theaforementioned causes of action against Master Care, the cause of action for conspiracy based onthe same facts and allegations, insofar as it is asserted against Master Care, was also properlydismissed (see Duane v Prescott, 134 AD2d 560, 561 [1987], lv denied 72 NY2d801 [1988]). Further, we conclude that the cause of action for injunctive relief, insofar as it isasserted against Master Care, was properly dismissed. "[T]here is no basis for injunctive relief"inasmuch as plaintiff has failed to state any cause of action against Master Care (Matter ofDavis v Dinkins, 206 AD2d 365, 368 [1994], lv denied 85 NY2d 804 [1995]).
Contrary to the further contention of plaintiff in appeal No. 1, the court did not abuse itsdiscretion in denying its cross motion for leave to amend the complaint. "Although leave toamend should be freely granted, it is properly denied where the proposed amendment[s are]lacking in merit" (Manufacturers &Traders Trust Co. v Reliance Ins. Co., 8 AD3d 1000, 1001 [2004]). Plaintiff's proposedamendments included additional references to the letter sent by Master Care to the MonroeCounty Executive and additional references to its brochure. Both the letter and the brochure,however, were attached to the original complaint, and the court determined, even in view of theletter and brochure, that Master Care established its entitlement to judgment as a matter of lawdismissing the complaint against it (seegenerally New Hampshire Ins. Co. v Bartha, 51 AD3d 480, 481 [2008], lv dismissedin part and denied in part 11 NY3d 771 [2008]).
We reject the contention of NFA in appeal No. 1 that the court erred in granting plaintiff'smotion to dismiss NFA's counterclaim for defamation based on plaintiff's alleged submission ofthe complaint to a local newspaper. Pursuant to Civil Rights Law § 74, "[a] civil actioncannot be maintained against any person, firm or corporation, for the publication of a fair andtrue report of any judicial proceeding . . . ." The protection afforded by the statute"extends not only to a transcript of the proceeding itself, but also to any pleading made withinthe course of the proceeding" (Branca v Mayesh, 101 AD2d 872, 873 [1984], affd63 NY2d 994 [1984]; see alsoLacher v Engel, 33 AD3d 10, 17 [2006]). Contrary to NFA's contention, thecounterclaim does not fit within the exception to the statute set forth in Williams vWilliams (23 NY2d 592, 598-599 [1969]), inasmuch as NFA failed to allege that the actionwas commenced solely for the purpose of defaming it (see Branca, 101 AD2d at 873).
We further conclude in appeal No. 1 that the court properly denied the cross motion of NFAfor leave to amend its counterclaim. In support of its cross motion, NFA failed to allege that theproposed amendments were based on new facts or that it was unaware of those facts when itasserted the counterclaim (see Smith v Bessen, 161 AD2d 847, 848-849 [1990];Axelrod v Axelrod, 106 AD2d 913 [1984]).
In appeal No. 2, NFA contends that the court erred in denying its motion for summaryjudgment dismissing the complaint against it. In support of that contention, NFA relies on a[*4]statement by the court in its order in appeal No. 1 that it was"not convinced that plaintiff . . . has demonstrated any actionable conduct directedagainst it by either defendant." NFA contends, based on that statement, that its motion in appealNo. 2 should have been granted based on the doctrine of law of the case. We reject thatcontention. The doctrine of law of the case "applies only to issues that have been judiciallydetermined" (Edgewater Constr. Co., Inc. v 81 & 3 of Watertown, Inc. [appeal No. 2], 24AD3d 1229, 1231 [2005]) and "to the same question in the same case" (Tillman v Women'sChristian Assn. Hosp., 272 AD2d 979, 980 [2000] [internal quotation marks omitted]). Here,the issues presented by NFA's motion were not "judicially determined" by the court in the orderin appeal No. 1 (Edgewater Constr. Co., Inc., 24 AD3d at 1231).
We conclude that NFA failed to establish its entitlement to judgment as a matter of law withrespect to the causes of action against it, with the exception of the cause of action for conspiracy,insofar as it is asserted against NFA. The court dismissed the complaint against Master Care,including the conspiracy cause of action, and " '[a]llegations of conspiracy are permitted only toconnect the actions of separate defendants with an otherwise actionable tort' " (Transit Mgt., LLC v Watson Indus.,Inc., 23 AD3d 1152, 1155-1156 [2005], quoting Alexander & Alexander of N.Y. vFritzen, 68 NY2d 968, 969 [1986]). Master Care is no longer a defendant in this action, andthus no cause of action for civil conspiracy lies against NFA (see id.). We thereforemodify the judgment and order in appeal No. 2 accordingly. Present—Martoche, J.P.,Peradotto, Green and Pine, JJ.