| DiFabio v Jordan |
| 2014 NY Slip Op 00031 [113 AD3d 1109] |
| January 3, 2014 |
| Appellate Division, Fourth Department |
| Michael J. DiFabio, Respondent, v James M.Jordan, Appellant. |
—[*1] O'Hara, O'Connell & Ciotoli, Fayetteville (Stephen Ciotoli of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Oswego County (James W. McCarthy,J.), entered March 19, 2013. The order, among other things, denied the motion ofdefendant for summary judgment dismissing the amended complaint.
It is hereby ordered that the order so appealed from is unanimously modified on thelaw by granting the motion in part and dismissing the second cause of action and asmodified the order is affirmed without costs.
Memorandum: In this action seeking damages for defamation and tortiousinterference with contractual relations, defendant appeals from an order denying hismotion for summary judgment dismissing the amended complaint. Contrary todefendant's contention, Supreme Court properly denied that part of his motion seekingsummary judgment on the first cause of action, for defamation. In this action involving apublic figure, defendant's burden in support of the motion with respect to the defamationcause of action "is not . . . to prove as a matter of law that [he] did notpublish with actual malice, but [instead is] to point to deficiencies in the record that willprevent plaintiff from proving that fact by clear and convincing evidence" (Kipper v NYP Holdings Co.,Inc., 12 NY3d 348, 354 [2009]; see Humane League of Phila., Inc. v Berman & Co., 108 AD3d417, 418 [2013]). A defendant seeking summary judgment dismissing a defamationcause of action bears the initial "burden of demonstrating that plaintiff could not show byclear and convincing evidence that he made the challenged statements with actualmalice" (Farber v Jefferys,103 AD3d 514, 515 [2013], lv denied 21 NY3d 858 [2013]). Here,defendant failed to meet that burden and, in any event, plaintiff raised a triable issue offact whether defendant acted with actual malice, " 'that is, with knowledge that it wasfalse or with reckless disregard of whether it was false or not' " (Freeman vJohnston, 84 NY2d 52, 56 [1994], cert denied 513 US 1016 [1994],quoting New York Times Co. v Sullivan, 376 US 254, 280 [1964]).
We agree with defendant, however, that the court erred in denying his motion withrespect to the second cause of action, for tortious interference with contract. We thereforemodify the order accordingly. Indeed, plaintiff concedes that he cannot establish thatdefendant's conduct caused a breach of plaintiff's employment contract, as required tomake out a prima facie case of tortious interference with an existing contract (seegenerally Lama Holding Co. v Smith [*2]Barney, 88NY2d 413, 424 [1996]; NBT Bancorp v Fleet/Norstar Fin. Group, 87 NY2d 614,620-621 [1996]), as pleaded in the complaint. We reject plaintiff's contention that thecourt properly denied the motion with respect to the second cause of action because heraised a triable issue of fact with respect to an unpleaded "claim of tortious interferencewith economic relations" (Carvel Corp. v Noonan, 3 NY3d 182, 190-191 [2004]). Ingeneral, "[a] court should not consider the merits of a new theory of recovery, raised forthe first time in opposition to a motion for summary judgment, that was not pleaded inthe complaint" (Mezger v Wyndham Homes, Inc., 81 AD3d 795, 796[2011]; see Ostrov vRozbruch, 91 AD3d 147, 154 [2012]). In any event, even assuming, arguendo,that a court may deny a defendant's summary judgment motion based upon an unpleadedclaim or cause of action where there is no surprise to the moving party and the evidencesubmitted in opposition to the motion raises a triable issue as to such a claim (seeDavid D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B,CPLR C3212:11), we conclude that plaintiff failed to raise a triable issue of fact withrespect to that unpleaded claim.
We have considered the parties' remaining contentions and conclude that they arewithout merit. Present—Smith, J.P., Fahey, Lindley, Valentino and Whalen, JJ.