| Tenney v Hodgson Russ, LLP |
| 2012 NY Slip Op 05783 [97 AD3d 1089] |
| July 26, 2012 |
| Appellate Division, Third Department |
| Eugene C. Tenney, Appellant, v Hodgson Russ, LLP, et al.,Respondents. |
—[*1] Hagerty & Brady, Buffalo (Michael A. Brady of counsel), for Hodgson Russ, LLP andothers, respondents. Hodgson Russ LLP, Buffalo (Kevin M. Kearney of counsel), for Robert G. Shibley andothers, respondents.
Peters, P.J. Appeal (transferred to this Court by order of the Appellate Division, FourthDepartment) from an order of the Supreme Court (Whalen, J.), entered October 7, 2011 in ErieCounty, which granted defendants' motion to dismiss the complaint.
Plaintiff owned real property in the Town of Amherst, Erie County adjacent to the NorthCampus of the University at Buffalo, an institution operated by the State University of New York(hereinafter SUNY), which he contracted to sell to GMH Communities, LP, an entity planning tobuild a large student housing complex thereon. Because the complex was not permitted on theproperty as originally zoned, the sale was made contingent upon the area being rezoned, and theTown initially granted that relief in March 2007.
SUNY thereafter commenced a series of proceedings challenging the rezoning and otheractions taken by the Town in furtherance of the proposed development, naming the Town,plaintiff and others as respondents. The Town promptly agreed to annul the rezoning of plaintiff'sproperty upon the ground that it violated the Town's comprehensive plan. Plaintiff [*2]responded by asserting that SUNY lacked capacity to bring theproceedings and, moreover, that the litigation amounted to tortious interference with the contractto sell his property to GMH. As is relevant here, Supreme Court dismissed the proceedings forlack of capacity to sue due to the failure of the SUNY Board of Trustees to authorize them, butrejected plaintiff's further contention that SUNY's actions in undertaking the litigation werefrivolous. The court also transferred plaintiff's tortious interference counterclaim to the Court ofClaims, where it was later dismissed. The Appellate Division, Fourth Department affirmedSupreme Court's order (Matter of StateUniv. of N.Y. v Town of Amherst, 81 AD3d 1476 [2011]).
Shortly before the Fourth Department handed down its decision, plaintiff commenced thepresent action against defendants, the attorneys and university officials involved in commencingand prosecuting the proceedings on SUNY's behalf. Plaintiff asserts that defendants' involvementin the prior, unauthorized litigation constituted violations of Civil Rights Law §§ 70and 71, and that their actions amounted to tortious interference with the efforts to sell his realproperty. Defendants successfully moved to dismiss the complaint, and the present appeal byplaintiff was transferred to this Court from the Fourth Department.
When assessing whether a complaint states a cause of action for purposes of a motion todismiss pursuant to CPLR 3211 (a) (7), "the pleading is to be given a liberal construction, theallegations contained within it are assumed to be true and the plaintiff is to be afforded everyfavorable inference" (Simkin vBlank, 19 NY3d 46, 52 [2012]). That favorable treatment is not limitless, however, and"allegations consisting of bare legal conclusions as well as factual claims flatly contradicted bydocumentary evidence are not entitled to any such consideration" (Gertler v Goodgold,107 AD2d 481, 485 [1985], affd for reasons stated below 66 NY2d 946 [1985]; see Brumaghim v Eckel, 94 AD3d1391, 1393 n 1 [2012]). That is precisely the situation presented here, where essential factualelements of plaintiff's causes of action are contradicted by documentary evidence, and SupremeCourt thus properly dismissed the complaint.
Plaintiff alleges that defendants acted in a vexatious or malicious manner by commencing theprior proceedings in SUNY's name and prosecuting them after issues regarding SUNY's capacityto sue were raised. While such allegations facially state a cause of action under Civil Rights Law§§ 70 and 71 (see Mintz &Gold, LLP v Zimmerman, 56 AD3d 358, 359 [2008]), defendants here believed thatindividuals "designated by the Board of Trustees and given the express authority to authorize thelawsuit[s]" had, in fact, done so (Matter of State Univ. of N.Y. v Town of Amherst, 81AD3d at 1477). Indeed, Supreme Court found in dismissing the prior cases that they had beencommenced and prosecuted with the full knowledge and approval of SUNY's vice chancellor andcounsel, as well as the Attorney General (see Executive Law § 63 [1]; Matter of Gyrodyne Co. of Am., Inc. vState Univ. of N.Y. at Stony Brook, 17 AD3d 675, 675-676 [2005], lv denied 5NY3d 716 [2005]; see also 8 NYCRR 328.2, 328.3). The Board of Trustees was alsoaware of the prior litigation and, while never explicitly authorizing it, passed a resolution makingclear that the methods employed by defendants were consistent with longstanding practice andconstituted SUNY's "policy and procedure for initiating litigation." As a matter of law, thisevidence established that defendants were not acting "vexatiously or maliciously" by pursuing theprior litigation (Civil Rights Law § 70; see Fischer v Maloney, 43 NY2d 553, 557[1978]; cf. Mintz & Gold, LLP v Zimmerman, 56 AD3d at 359).
Documentary evidence and plaintiff's own admissions further negate an essential element ofhis tortious interference claim, namely, that an "actual breach of the contract" of sale occurred(Lama Holding Co. v Smith Barney, 88 NY2d 413, 424 [1996]; see NBT Bancorp v[*3]Fleet/Norstar Fin. Group, 87 NY2d 614, 620-621[1996]). Indeed, plaintiff's property was successfully rezoned in August 2007 and sold soon after,and his tortious interference claim fails in the face of these undisputed facts (see Estate ofRoth v Erhal Holding Corp., 141 AD2d 693, 696 [1988]; Ford v Village of Sidney,139 AD2d 848, 849 [1988]).
Lahtinen, Spain, Malone Jr. and Garry, JJ., concur. Ordered that the order is affirmed, withone bill of costs.