| 534 E. 11th St. Hous. Dev. Fund Corp. v Hendrick |
| 2011 NY Slip Op 09181 [90 AD3d 541] |
| Dcmbr 20, 2011 |
| Appellate Division, First Department |
| 534 East 11th Street Housing Development Fund Corporation,Respondent, v Peter Hendrick, Appellant. |
—[*1] Edward Joseph Filemyr IV, New York, for respondent.
Order, Supreme Court, New York County (Walter B. Tolub, J.), entered November 17, 2009,which, to the extent appealed from, granted plaintiff's motion to dismiss defendant's affirmativedefenses and third and fourth counterclaims, unanimously modified, on the law, to reinstate theaffirmative defenses and the counterclaim for tortious interference, and otherwise affirmed,without costs.
On a motion to dismiss affirmative defenses pursuant to CPLR 3211 (b), the plaintiff bearsthe burden of demonstrating that the defenses are without merit as a matter of law (see e.g. Vita v New York Waste Servs.,LLC, 34 AD3d 559, 559 [2006]; Santilli v Allstate Ins. Co., 19 AD3d 1031, 1032 [2005]). Indeciding a motion to dismiss a defense, the defendant is entitled to the benefit of everyreasonable intendment of the pleading, which is to be liberally construed (Warwick vCruz, 270 AD2d 255 [2000]). A defense should not be stricken where there are questions offact requiring trial (see e.g. Atlas Feather Corp. v Pine Top Ins. Co., 128 AD2d 578,578-579 [1987]).
While not listed under the sections specifically titled for each defense, defendant pled factualallegations in the body of his answer sufficient to give notice of what he intends to prove underhis defenses (see LoPinto v Roldos, 235 AD2d 233 [1997]).
Defendant also sufficiently pled a counterclaim for tortious interference with a businessrelationship. A claim for tortious interference with a prospective business relationship (i.e., aneconomic advantage) must allege: (1) the defendant's knowledge of a business relationshipbetween the plaintiff and a third party; (2) the defendant's intentional interference with therelationship; (3) that the defendant acted by the use of wrongful means or with the sole purposeof malice; and (4) resulting injury to the business relationship (see NBT Bancorp vFleet/Norstar Fin. Group, 87 NY2d 614 [1996]; Thome v Alexander & Louisa Calder Found., 70 AD3d 88 [2009],lv denied 15 NY3d 703 [2010]).
Here, defendant has pled that plaintiff, who knew defendant had a contract to sell hisapartment, interfered with that relationship by refusing, in bad faith, to approve his buyer afterdefendant refused to take part in a fraudulent scheme to lower a buyer's tax burden so that theapartment could be purchased by a shareholder's son.[*2]
Plaintiff relies on the business judgment rule, whichprovides that so long as the board acts for the purposes of the cooperative, within the scope of itsauthority and in good faith, courts will not substitute their judgment for the board's (seeMatter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 538 [1990]). However,pre-discovery dismissal of pleadings in the name of the business judgment rule is inappropriatewhere those pleadings suggest that the directors did not act in good faith (see Bryan v West81 St. Owners Corp., 186 AD2d 514 [1992]).
However, the motion court correctly dismissed defendant's fourth counterclaim, seekingattorney's fees. As there is no allegation that either party was in default of any of the provisionsof the proprietary lease, the defendant is not entitled to recover attorney's fees (see Salvato vSt. David's School, 307 AD2d 812 [2003]). Concur—Gonzalez, P.J., Mazzarelli,Acosta, Sweeny and RomÁn, JJ.