| Kenneth H. Brown & Co., Inc. v Dutchess Works One-Stop Empl. &Training Ctr., Inc. |
| 2010 NY Slip Op 04339 [73 AD3d 984] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Kenneth H. Brown & Co., Inc., Doing Business as Brown's DrivingSchool, Appellant, v Dutchess Works One-Stop Employment & Training Center, Inc., etal., Respondents. |
—[*1] McCabe & Mack LLP, Poughkeepsie, N.Y. (Michelle Almeida and Kimberly Hunt Lee ofcounsel), for respondent Dutchess County Work Force Investment Board, Inc.
In an action, inter alia, to recover damages for tortious interference with business relations,the plaintiff appeals from an order of the Supreme Court, Dutchess County (Brands, J.), datedJuly 30, 2008, which granted that branch of the motion of the defendants Dutchess WorksOne-Stop Employment & Training Center, Inc., and Frederick R. Fister, and that branch of theseparate motion of the defendant Dutchess County Work Force Investment Board, Inc., whichwere, in effect, pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as assertedagainst them.
Ordered that the order is affirmed, with one bill of costs.
The defendants Dutchess County Work Force Investment Board, Inc. (hereinafter DCWIB),and Dutchess Works One-Stop Employment & Training Center, Inc. (hereinafter DutchessWorks) (hereinafter together the respondents), are not-for-profit corporations which provide,inter alia, employment and training services in the Dutchess County area under the federalWorkforce Investment Act (hereinafter the Act) (29 USC §§ 2801-2945). Under theAct, the government will pay for qualifying individuals to attend an approved training program.Individuals select a program from an eligible training provider list provided by the local board,here, DCWIB. To be placed on that list, providers of training services must meet specified initialeligibility requirements (see 29 USC § 2842 [b]). To remain on the list, providersmust meet subsequent eligibility requirements (see 29 USC § 2842 [c]). The localboard, here, the DCWIB, may define requirements in addition to those which the Act itselfestablishes (see 29 USC § 2842 [c] [6]).
The defendant Dutchess Works is charged with helping individuals choose an appropriateprogram, which includes providing information, inter alia, on the performance of a particulartraining program (see 29 USC § 2864 [d] [4] [F] [ii] [II]). The plaintiff is aneligible training provider for individuals [*2]seeking to obtain aCommercial Driver's License (hereinafter a CDL). In approximately 2004, the plaintiff beganreceiving fewer students from Dutchess Works. Kenneth H. Brown, the president of the plaintiff,believed that Dutchess Works was discouraging students from attending his school. In responseto his concern, the defendant Frederick R. Fister, the Executive Director of Dutchess Works,informed him that Dutchess Works was obligated to present its clients with sufficientinformation to make an informed choice about which program to attend. Fister noted that theinformation Dutchess Works shared with individuals seeking a CDL indicated that less than 50%of the clients sent to the plaintiff's school secured jobs after training, while 96% of the clientssent to a competitor secured jobs after training.
In November 2005, DCWIB established policies and procedures relating to eligibility andsubsequent eligibility for training providers, which required training providers to report programresults on an ongoing basis, and established procedures relating to written student complaints, ordisconfirming annual data.
The plaintiff commenced this action, inter alia, to recover damages for alleged violations ofthe Act and for tortious interference with prospective business relations. Prior to the filing of theinstant motions, the Supreme Court dismissed the complaint as to some of the individualdefendants. Subsequently, the respondents separately moved, among other things, in effect,pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against them, and theSupreme Court granted those branches of the respondents' motions. We affirm.
To the extent that the fourth cause of action seeks to recover damages for tortiousinterference with business relations, the Supreme Court properly dismissed that cause of action,as the plaintiff did not plead that any of the respondents was motivated solely by malice orintended to inflict injury by unlawful means (see Alexander & Alexander of N.Y. vFritzen, 68 NY2d 968, 969 [1986]; Monex Fin. Servs., Ltd. v Dynamic Currency Conversion, Inc., 62AD3d 675, 676 [2009]; SharedCommunications Servs. of ESR, Inc. v Goldman Sachs & Co., 23 AD3d 162, 163[2005]). The fifth cause of action alleging that the respondents acted in concert to interfere withthe plaintiff's business was properly dismissed because the underlying cause of action allegingtortious interference was improperly pleaded and, in any event, "a mere conspiracy to commit a[tort] is never of itself a cause of action" (Alexander & Alexander of N.Y. v Fritzen, 68NY2d at 969 [internal quotation marks omitted]; see Small v Lorillard Tobacco Co., 94NY2d 43, 57 [1999]; Cash v Titan Fin.Servs., Inc., 58 AD3d 785, 787 [2009]).
The respondents also demonstrated that the plaintiff was not entitled to recover damagesunder the Act, since the statute does not make an express provision for civil damages, and aprivate right of action cannot fairly be implied for the plaintiff under these circumstances (see Hammer v American Kennel Club,1 NY3d 294, 299 [2003]; Carrier v Salvation Army, 88 NY2d 298, 302 [1996];Sheehy v Big Flats Community Day, 73 NY2d 629, 633 [1989]). Moreover, the policiesabout which the plaintiff complained were authorized under the Act, and were consistent with itsstated goals (see 29 USC §§ 2811, 2864 [d] [4] [F]).
The plaintiff's remaining contentions are without merit. Rivera, J.P., Angiolillo, Dickersonand Roman, JJ., concur.