| Pitcock v Kasowitz, Benson, Torres & Friedman, LLP |
| 2011 NY Slip Op 00042 [80 AD3d 453] |
| January 6, 2011 |
| Appellate Division, First Department |
| Jeremy S. Pitcock, Appellant, v Kasowitz, Benson, Torres &Friedman, LLP, et al., Respondents. |
—[*1] Sullivan & Cromwell LLP, New York (Penny Shane and Sarah Stoller of counsel), forrespondents.
Order, Supreme Court, New York County (Martin Shulman, J.), entered June 2, 2010, which,insofar as appealed from as limited by the briefs, granted defendants' motion to dismiss the cause ofaction of the amended complaint alleging tortious interference with a contract, unanimously affirmed,with costs.
This is the second action filed in state court against defendant law firm for damages arising from thetermination of plaintiff's partnership for alleged personal misconduct, and his later termination by hissubsequent employer. In this action, plaintiff asserts that defendants interfered with his new employmentcontract by exchanging correspondence with the new law firm about a conflict of interest created byplaintiff's move (conflict letters). However, in the prior action, plaintiff already litigated the claim thatdefendants interfered with his new employment contract by circulating false and malicious statementsabout him (see 74 AD3d 613 [2010]).
Plaintiff's attempt to embellish his claim does not alter the result that res judicata bars the currentaction, as the allegations concerning the conflict letters "arose from the same transaction or series oftransactions" as his prior allegations (see Marinelli Assoc. v Helmsley-Noyes Co., 265 AD2d1, 5 [2000]). The conflict letters could have been discovered in time to assert them in the allegations ofthe prior complaint, and res judicata "applies not only to claims actually litigated but also to claims thatcould have been raised in the prior litigation" (Matter of Hunter, 4 NY3d 260, 269 [2005]).
Equally unavailing is plaintiff's contention that res judicata does not apply because the court'sdecision with respect to the prior action was not a final determination on the merits. The court'sdismissal of the prior action was not merely a dismissal for a technical pleading defect, but a dismissalmanifestly on the merits, based on a finding that plaintiff's own admissions precluded him from prevailingon his cause of action against such defendants, regardless of what other facts he might allege (seeLampert v Ambassador Factors Corp., 266 AD2d 124 [1999]).
Furthermore, even if the tortious interference with a contract cause of action was not barred by thedoctrine of res judicata, plaintiff has failed to state such a claim. He has not [*2]alleged, in nonconclusory language, the essential terms of the parties'contract, including the specific provisions upon which liability is predicated (see Matter of Sud vSud, 211 AD2d 423, 424 [1995]). Nor has he alleged that the contract would not have beenbreached "but for" defendants' conduct (Burrowes v Combs, 25 AD3d 370, 373 [2006], lv denied 7NY3d 704 [2006]). Indeed, plaintiff cannot claim that "but for" the conflict letters, he would not havebeen terminated inasmuch as he has already alleged that it was the defamatory statements that causedhim to be fired. Concur—Saxe, J.P., Friedman, Abdus-Salaam and RomÁn, JJ.[Prior Case History: 27 Misc 3d 1238(A), 2010 NY Slip Op 51093(U).]