| Ferrandino & Son, Inc. v Wheaton Bldrs., Inc., LLC |
| 2011 NY Slip Op 02346 [82 AD3d 1035] |
| March 22, 2011 |
| Appellate Division, Second Department |
| Ferrandino & Son, Inc., Appellant, v Wheaton Builders,Inc., LLC, Defendant, and HE2 Project Development, LLC, Respondent. (And OtherActions.) |
—[*1] Furman Kornfeld & Brennan, LLP, New York, N.Y. (Andrew S. Kowlowitz of counsel), forrespondent. Herrick Feinstein, LLP, New York, N.Y. (William R. Fried of counsel), for defendantWheaton Builders, Inc., LLC.
In an action, inter alia, to recover damages for tortious interference with contract, the plaintiffappeals from so much of an order of the Supreme Court, Nassau County (Driscoll, J.), dated July31, 2009, as granted those branches of the motion of the defendant HE2 Project Development,LLC, pursuant to CPLR 3211 (a) (7) which were to dismiss the causes of action alleging tortiousinterference with contract and civil conspiracy to commit a tort insofar as asserted against thatdefendant and denied its cross motion for leave to serve a second amended complaint.
Ordered that the order is affirmed insofar as appealed from, with costs to the respondent.
In February 2007, the plaintiff and the defendant Wheaton Builders, Inc., LLC (hereinafterWheaton), entered into a subcontract pursuant to which the plaintiff agreed to install a concretesuperstructure for a condominium complex located in Brooklyn. The defendant HE2 ProjectDevelopment, LLC (hereinafter HE2), was the project manager for the construction project. OnJune 25, 2008, Wheaton terminated the subcontract with the plaintiff based upon the plaintiff'salleged poor performance. Shortly thereafter, the plaintiff commenced this action againstWheaton and HE2. The plaintiff alleged, inter alia, that HE2 tortiously induced Wheaton tobreach its subcontract with the plaintiff and that Wheaton and HE2 maliciously conspiredtogether to interfere with and terminate the plaintiff's contract rights for their own benefit.
To state a cause of action alleging tortious interference with contract, the plaintiff mustallege: the existence of a valid contract between it and a third party, the defendant's knowledge ofthat contract, the defendant's intentional procurement of the third party's breach of that contract[*2]without justification, and damages (see Lama Holding Co.v Smith Barney, 88 NY2d 413, 424 [1996]; Washington Ave. Assoc. v EuclidEquip., 229 AD2d 486, 487 [1996]). The plaintiff must specifically "allege that the contractwould not have been breached but for the defendant's conduct" (Burrowes v Combs, 25 AD3d 370,373 [2006] [internal quotation marks omitted]; see Schuckman Realty v Marine MidlandBank, 244 AD2d 400, 401 [1997]). "Although on a motion to dismiss the allegations in acomplaint should be construed liberally, to avoid dismissal of a tortious interference withcontract claim a plaintiff must support his claim with more than mere speculation" (Burrowesv Combs, 25 AD3d at 373; see R.I.Is. House, LLC v North Town Phase II Houses, Inc., 51 AD3d 890, 895-896 [2008]; Black Car & Livery Ins., Inc. v H&WBrokerage, Inc., 28 AD3d 595, 595 [2006]). Here, the plaintiff merely asserted, in aconclusory manner and without the support of relevant factual allegations, that HE2's actionscaused Wheaton to breach the subcontract. Additionally, the plaintiff failed to allege that, but forHE2's actions, Wheaton would have continued the subcontract. Consequently, the Supreme Courtproperly granted those branches of HE2's motion pursuant to CPLR 3211 (a) (7) which were todismiss the cause of action to recover damages for tortious interference with contract insofar asasserted against it for failure to state a cause of action.
New York does not recognize civil conspiracy to commit a tort as an independent cause ofaction (see Hebrew Inst. for Deaf &Exceptional Children v Kahana, 57 AD3d 734, 735 [2008]; Salvatore v Kumar, 45 AD3d 560,563 [2007]). Instead, the claim stands or falls with the underlying tort (see Salvatore, 45AD3d at 563-564; Sokol v Addison, 293 AD2d 600, 601 [2002]). Here, contrary to theplaintiff's contentions, the civil conspiracy claim is clearly derivative of the tort of tortiousinterference. Since its viability in this case is derivative of the underlying tort of tortiousinterference, and that claim was properly dismissed, the civil conspiracy cause of action insofaras asserted against HE2 also was properly dismissed.
The Supreme Court also providently exercised its discretion in denying the plaintiff's crossmotion for leave to serve a second amended complaint. Although leave to amend should be freelygiven in the absence of prejudice or surprise to the opposing party (see CPLR 3025 [b]),the motion should be denied where the proposed amendment is palpably insufficient or patentlydevoid of merit (see Scofield vDeGroodt, 54 AD3d 1017, 1018 [2008]; Lucido v Mancuso, 49 AD3d 220, 227 [2008]). Moreover, "thedetermination whether to grant such leave is within the discretion of the motion court, and theexercise of that discretion will not be lightly disturbed" (Zeleznik v MSI Constr., Inc., 50 AD3d 1024, 1025 [2008]; see Pergament v Roach, 41 AD3d569, 572 [2007]). Here, the proposed causes of action against HE2 alleging tortiousinterference with contract and civil conspiracy suffer from the same defects as those alleged inthe amended complaint. These proposed causes of action were palpably insufficient and patentlydevoid of merit.
The plaintiff's remaining contentions concern matter dehors the record (see Schwarz v Margie, 62 AD3d780, 781 [2009]; Mendoza v PlazaHomes, LLC, 55 AD3d 692, 693 [2008]). Rivera, J.P., Dickerson, Eng and Lott, JJ.,concur.