| Smith v Meridian Tech., Inc. |
| 2011 NY Slip Op 05954 [86 AD3d 557] |
| July 12, 2011 |
| Appellate Division, Second Department |
| David Smith, Appellant, v Meridian Technologies, Inc., etal., Respondents. |
—[*1] Marshall & Bellard (Reisman, Peirez & Reisman, LLP, Garden City, N.Y. [JosephCapobianco and Gabrielle R. Schaich], of counsel), for respondents.
In an action, inter alia, to recover damages for prima facie tort and intentional interferencewith prospective contractual relations, and for a judgment declaring that the restrictive covenantsin the parties' employment agreement are unenforceable, the plaintiff appeals from an order of theSupreme Court, Nassau County (Brandveen, J.), dated June 25, 2010, which granted thedefendants' motion, in effect, for summary judgment dismissing the first, second, third, and sixthcauses of action, and for a declaration that the restrictive covenants in the parties' employmentagreement are enforceable, and denied his cross motion for summary judgment on the complaint.
Ordered that the order is affirmed, with costs, and the matter is remitted to the SupremeCourt, Nassau County, for the entry of a judgment, inter alia, declaring that the restrictivecovenants in the parties' employment agreement are enforceable.
The plaintiff commenced this action, inter alia, to recover damages for prima facie tort andintentional interference with prospective contractual relations. This action arises from events thatoccurred in 2006, when the plaintiff resigned from a position as a vice-president for salesdevelopment at the defendant Meridian Technologies, Inc. (hereinafter Meridian). The plaintiffexecuted an employment agreement while he was employed at Meridian which provided, amongother things, that during and after the period of the plaintiff's employment, he would not revealany "Confidential Information or Trade Secrets" to any entity. The agreement also provided that,for a period of two years after the plaintiff "terminated . . . th[e] agreement," theplaintiff would not be employed at "any business, which researches, designs, develops,manufactures, sells or deals in any way with the technology of video transmission systems viafiber optic cables."
In late June 2006, the plaintiff resigned from Meridian. Several days later, he began workingfor another company, Multidyne, Inc. (hereinafter Multidyne). In August 2006 the managingdirector of Meridian, the defendant Michael C. Barry, sent a letter to the plaintiff, and also sent acopy of that letter to the president of Multidyne. That letter alleged, among other things, that theplaintiff had "exploited confidential trade secrets" of Meridian during his employment atMultidyne. Approximately one week later, counsel for Meridian sent another letter to theplaintiff; a copy of that letter was also sent to the president of Multidyne. That letter stated, interalia, that the [*2]plaintiff's employment at Multidyne was inviolation of the noncompetition provision of his employment agreement with Meridian. Shortlyafter the second letter was received, the plaintiff's employment at Multidyne was terminated, andthis action ensued.
The Supreme Court did not err in granting that branch of the defendants' motion which wasfor summary judgment dismissing the cause of action to recover damages for prima facie tort.The requisite elements of a cause of action sounding in prima facie tort are: "(1) the intentionalinfliction of harm, (2) which results in special damages, (3) without any excuse or justification,(4) by an act or series of acts which would otherwise be lawful" (Freihofer v HearstCorp., 65 NY2d 135, 142-143 [1985]; see Curiano v Suozzi, 63 NY2d 113, 117-118[1984]; Del Vecchio v Nelson, 300 AD2d 277, 278 [2002]; Levy v Coates, 286AD2d 424 [2001]). "[T]here is no recovery in prima facie tort unless malevolence is the solemotive for defendant's otherwise lawful act," that is, "unless defendant acts from 'disinterestedmalevolence' " (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 333[1983], quoting American Bank & Trust Co. v Federal Reserve Bank of Atlanta, 256 US350, 358 [1921]). For purposes of a cause of action to recover damages for prima facie tort, " 'thegenesis which will make a lawful act unlawful must be a malicious one unmixed with any otherand exclusively directed to injury and damage of another' " (Burns Jackson Miller Summit &Spitzer v Lindner, 59 NY2d at 333, quoting Beardsley v Kilmer, 236 NY 80, 90[1923]). Thus, " '[a] claim of prima facie tort does not lie where the defendant's action has anymotive other than a desire to injure the plaintiff' " (Weaver v Putnam Hosp. Ctr., 142AD2d 641, 641-642 [1988], quoting Global Casting Indus. v Daley-Hodkin Corp., 105Misc 2d 517, 522 [1980]).
Here, the evidence showed that, in sending the subject letters, the defendants did not actsolely based on disinterested malevolence, as, inter alia, the defendants alleged in those lettersthat the plaintiff's employment at Multidyne, a company engaged in the sale of fiberoptic videotransmission equipment, violated the terms of the covenants not to compete set forth in theplaintiff's employment agreement with Meridian. In opposition to that showing, the plaintifffailed to raise a triable issue of fact as to whether the defendants' actions were solely motivatedby disinterested malevolence. Accordingly, the Supreme Court properly granted that branch ofthe defendants' motion which was for summary judgment dismissing the cause of action torecover damages for prima facie tort (see Burns Jackson Miller Summit & Spitzer vLindner, 59 NY2d at 333-334; Simaee v Levi, 22 AD3d 559, 562-563 [2005]; Lynch vMcQueen, 309 AD2d 790, 792 [2003]; see also Bainton v Baran, 287 AD2d 317,318 [2001]).
The Supreme Court also properly granted that branch of the defendants' motion which wasfor summary judgment dismissing the causes of action to recover damages for intentionalinterference with prospective contractual relations. To establish a defendant's liability fordamages for tortious interference with prospective contractual relations, the plaintiff must showthat the defendant engaged in wrongful conduct which interfered with a prospective contractualrelationship between the plaintiff and a third party. As a general rule, such wrongful conductmust amount to a crime or an independent tort, and may consist of "physical violence, fraud ormisrepresentation, civil suits and criminal prosecutions" (Guard-Life Corp. v ParkerHardware Mfg. Corp., 50 NY2d 183, 191 [1980]). Such wrongful conduct may include"some degrees of economic pressure;" however, "persuasion alone" is not sufficient (id.at 191; see Lyons v Menoudakos &Menoudakos, P.C., 63 AD3d 801, 802 [2009]). Here, in light of, inter alia, the covenantsnot to compete set forth in the employment agreement between Meridian and the plaintiff, andthe evidence showing that Meridian and Multidyne were both engaged in the sale of fiberopticvideo equipment, the defendants showed, prima facie, that they did not engage in wrongfulconduct for purposes of this cause of action, and the plaintiff failed to raise a triable issue of fact(see Adler v 20/20 Cos., 82 AD3d915, 918 [2011]; BGW Dev. Corp. v Mount Kisco Lodge No. 1552 of Benevolent &Protective Order of Elks of U.S. of Am., 247 AD2d 565, 567-568 [1998]).
The Supreme Court properly granted that branch of the defendants' motion which was forsummary judgment dismissing the cause of action to recover damages for breach of contract, asthe defendants showed, prima facie, that they did not breach the parties' employment agreement,and the plaintiff failed to raise a triable issue of fact as to whether the defendants failed to complywith any specific obligations under that agreement (see Morales v County of Suffolk, 82 AD3d 1184, [*3]1185-1186 [2011]).
The Supreme Court did not err in granting that branch of the defendants' motion which was,in effect, for summary judgment declaring that the restrictive covenants in the parties'employment agreement are enforceable. The defendants showed, prima facie, that those clauseswere enforceable under the circumstances presented herein, and the plaintiff failed to raise atriable issue of fact in opposition to that showing (see Michael G. Kessler & Assoc., Ltd. v White, 28 AD3d 724, 725[2006]; see also Stiepleman Coverage Corp. v Raifman, 258 AD2d 515, 516 [1999]).
Since this is, in part, a declaratory judgment action, the matter must be remitted to theSupreme Court, Nassau County, for the entry of a judgment, inter alia, declarating that therestrictive covenants in the parties' employment agreement are enforceable (see Lanza vWagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], certdenied 371 US 901 [1962]). Mastro, J.P., Chambers, Austin and Cohen, JJ., concur.