| Meghan Beard, Inc. v Fadina |
| 2011 NY Slip Op 02114 [82 AD3d 591] |
| March 24, 2011 |
| Appellate Division, First Department |
| Meghan Beard, Inc., Doing Business as Docorum ModelManagement, Appellant, v Aina Fadina et al., Respondents. |
—[*1] Carlos M. Carvajal, New York, for respondents.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered October 15, 2009,which, insofar as appealed from as limited by the briefs, granted defendants' motion to dismissthe amended complaint's third, fourth, fifth, and sixth causes of action pursuant to CPLR 3211(a) (7), unanimously modified, on the law, to reinstate in part the amended complaint's thirdcause of action, for breach of contract against defendant Aina Fadina, insofar as it alleges breachof the Oscar De La Renta booking agreement, and the fourth cause of action, for tortiousinterference with contract against defendant Muse Management, Inc., insofar as it alleges breachof the Oscar De La Renta booking agreement, and otherwise affirmed, without costs.
Supreme Court properly determined that the management agreement between plaintiff anddefendant Fadina was unenforceable because the temporal restriction of the noncompetecovenant was unreasonable (see CrownIT Servs., Inc. v Koval-Olsen, 11 AD3d 263, 264 [1st Dept 2004]). However, themotion court erred in holding that the management agreement was unenforceable because of anoral covenant. While it is true that "anticompetitive covenants covering the postemploymentperiod will not be implied" and must be express, the covenant can be written or verbal (seeAmerican Broadcasting Cos. v Wolf, 52 NY2d 394, 406 [1981]). Moreover, the motion courtonly analyzed the third cause of action as one for breach of the management agreement when infact, the breach of contract claim was actually premised upon the booking agreements. We findthat the third cause of action is viable only to the extent that it is premised upon the bookingagreement, between plaintiff and Fadina, for Fadina to appear for the Oscar De La Renta bookingin June 2009. Whether plaintiff can demonstrate Fadina breached that booking agreement is afactual determination that can not be made on a CPLR 3211 motion.
The motion court properly dismissed the fourth cause of action to the extent that it waspremised upon defendant Muse's tortious interference with plaintiff's booking agreement withAkris. Plaintiff's own allegations negate at least two essential elements of the cause ofaction—breach and damages—because plaintiff conceded that Fadina appeared forthe booking and that Akris paid plaintiff for that appearance.
Plaintiff, however, has alleged facts sufficient to state a claim for defendant Muse's tortiousinterference with plaintiff's booking agreement with Oscar De La Renta. The motion [*2]court erred insofar as it premised the dismissal upon plaintiff'sfailure to allege that Muse induced the alleged breach by "unlawful or improper" means. Thatcriteria is only applicable in a cause of action for tortious interference with prospective advantageor business relations (Carvel Corp. vNoonan, 3 NY3d 182, 190-194 [2004]). Here, plaintiff's claim is tortious interferencewith contract, which only requires plaintiff to allege "(1) the existence of a valid contract. . . ; (2) the defendant's knowledge of that contract; (3) the defendant's intentionalprocuring of the breach of that contract[;] and (4) damages" (Israel v Wood Dolson Co., 1NY2d 116, 120 [1956]). Plaintiff has sufficiently pleaded that Muse interfered with plaintiff'sbooking agreement with Oscar De La Renta.
Supreme Court properly dismissed the fifth cause of action, for unfair competition. Plaintiffalleged that Muse contacted Akris and Oscar De La Renta to insist that Muse handle the billinginstead of plaintiff. There is simply no evidence of record that Muse was taking or using thegoodwill attached to plaintiff's name or that Muse was palming itself off as plaintiff (see ITC Ltd. v Punchgini, Inc., 9 NY3d467, 476-478 [2007]).
The motion court also properly dismissed the sixth cause of action, for unjust enrichment.Plaintiff is attempting to recover on a quasi-contractual basis because it cannot prevail on thebreach of the management agreement. Plaintiff was compensated by the commissions it receivedduring its concededly "freelance" and "at will" relationship with Fadina, and equity need notintercede. Concur—Gonzalez, P.J., Friedman, Catterson, Renwick and Abdus-Salaam, JJ.[Prior Case History: 2009 NY Slip Op 32359(U).]