| Chung v Wang |
| 2010 NY Slip Op 09099 [79 AD3d 693] |
| December 7, 2010 |
| Appellate Division, Second Department |
| Betty Mei-Ling Chung, Appellant, v Anna Wang et al.,Respondents. |
—[*1] Law Office of Ming Hai, P.C., Flushing, N.Y. (Charles Jefferson Spraggins, Jr., of counsel), forrespondents.
In an action, inter alia, to recover damages for tortious interference with contract, the plaintiffappeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County(Agate, J.), dated July 8, 2009, as granted the defendants' motion to dismiss the complaint pursuant toCPLR 3211 (a) (5) and (7).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendants' motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) and (7) is denied.
The plaintiff asserted causes of action to recover damages for tortious interference with contract,fraud, and conspiracy. The defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (5)and (7), contending that the causes of action were time-barred and failed to state a cause of action. Inthe order appealed from, the Supreme Court, inter alia, granted the defendants' motion. We reverse theorder insofar as appealed from.
To dismiss a cause of action pursuant to CPLR 3211 (a) (5), on the ground that it is barred by thestatute of limitations, a defendant bears the initial burden of establishing prima facie that the time inwhich to sue has expired (see Sabadie vBurke, 47 AD3d 913 [2008]; Savarese v Shatz, 273 AD2d 219 [2000]). Contraryto the Supreme Court's determination, the causes of action alleging tortious interference with contractand fraud are not governed by a one-year statute of limitations. Rather, the cause of action allegingtortious interference with contract is governed by the three-year limitations period of CPLR 214 (4)(see Kronos, Inc. v AVX Corp., 81 NY2d 90, 92 [1993]), while a cause of action basedupon fraud must be commenced within six years from the time of the fraud or within two years from thetime the fraud was discovered, or with reasonable diligence, could have been discovered, whichever islonger (see CPLR 213 [8]; Pericon vRuck, 56 AD3d 635, 636 [2008]). The defendants failed to establish that the causes of actionalleging tortious interference with contract and fraud were time-barred. Therefore, the Supreme Courterred in granting those branches of the defendants' motion which were to dismiss those causes of actionpursuant to CPLR 3211 (a) (5).
The Supreme Court also erred in granting that branch of the defendants' motion which waspursuant to CPLR 3211 (a) (7) to dismiss the complaint. The elements of a cause of action allegingtortious interference with contract are: (1) the existence of a valid contract between the [*2]plaintiff and a third party, (2) the defendant's knowledge of that contract,(3) the defendant's intentional procurement of the third party's breach of that contract, and (4) damages(see Foster v Churchill, 87 NY2d 744, 749-750 [1996]; R.U.M.C. Realty Corp. v JCF Assoc., LLC, 51 AD3d 993, 994-995[2008], citing Lama Holding Co. v Smith Barney, 88 NY2d 413, 424 [1996]). "The essentialelements of a cause of action sounding in fraud are a misrepresentation or a material omission of factwhich was false and known to be false by defendant, made for the purpose of inducing the other partyto rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, andinjury" (Orlando v Kukielka, 40 AD3d829, 831 [2007]; see also Lama Holding Co. v Smith Barney, 88 NY2d at 421). "Wherea cause of action or defense is based upon misrepresentation, fraud, [or] mistake . . . thecircumstances constituting the wrong shall be stated in detail" (CPLR 3016 [b]).
Viewing the complaint in the light most favorable to the plaintiff and accepting the factual allegationsas true, we find that the complaint sufficiently stated causes of action to recover damages for tortiousinterference with contract and fraud (seeMicro Tech. Intl., Inc. v Artech Info. Sys., LLC, 62 AD3d 764 [2009]; Zuckerwise vSorceron Inc., 289 AD2d 114, 115 [2001]; Pericon v Ruck, 56 AD3d 635 [2008]). Moreover, the plaintiff pleadedeach of the elements of fraud with the requisite specificity pursuant to CPLR 3016 (b) (see Pludeman v Northern Leasing Sys., Inc.,10 NY3d 486, 491-492 [2008]; Etzionv Etzion, 62 AD3d 646, 652-653 [2009]; Pericon v Ruck, 56 AD3d at 636).
Since the plaintiff stated causes of action to recover damages for independently actionable tortssuch as fraud and tortious interference with contract, the Supreme Court erred in dismissing theplaintiff's cause of action alleging conspiracy pursuant to CPLR 3211 (a) (7) (see Alexander &Alexander of N.Y. v Fritzen, 68 NY2d 968, 969 [1986]; Shepis v 3 Cottage PlaceAssoc., 265 AD2d 317 [1999]).
The parties' remaining contentions are without merit. Fisher, J.P., Angiolillo, Belen and Austin, JJ.,concur.