| Nagan Constr., Inc. v Monsignor McClancy Mem. HighSch. |
| 2014 NY Slip Op 03808 [117 AD3d 1005] |
| May 28, 2014 |
| Appellate Division, Second Department |
[*1]
| Nagan Construction, Inc., et al.,Appellants, v Monsignor McClancy Memorial High School et al., Defendants,and Lizardos Engineering Associates, P.C., Respondent. |
King & King, LLP, Long Island City, N.Y. (Peter M. Kutil of counsel), forappellants.
Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (David M. Pollackand Nicholas A. Carre of counsel), for respondent.
In an action, inter alia, to recover damages for tortious interference with contract, theplaintiffs appeal, as limited by their brief, from so much of an order of the SupremeCourt, Queens County (Grays, J.), dated August 7, 2012, as granted that branch of themotion of the defendant Lizardos Engineering Associates, P.C., which was pursuant toCPLR 3211 (a) (7) to dismiss the cause of action alleging tortious interference withcontract insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
In considering a motion to dismiss a complaint for failure to state a cause of actionpursuant to CPLR 3211 (a) (7), the allegations in the complaint should be accepted astrue, and the motion should be granted only if the facts as alleged do not fit within anycognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Rietschel v Maimonides Med.Ctr., 83 AD3d 810 [2011]; Peterec-Tolino v Harap, 68 AD3d 1083, 1084 [2009]).Here, the Supreme Court properly determined that the complaint failed to state a cause ofaction against the defendant Lizardos Engineering Associates, P.C. (hereinafterLizardos), to recover damages for tortious interference with contract. The elements of acause of action alleging tortious interference with contract are: (1) the existence of avalid contract between the plaintiff and a third party, (2) the defendant's knowledge ofthat contract, (3) the defendant's intentional procurement of a third-party's breach of thatcontract without justification, and (4) damages (see Foster v Churchill, 87 NY2d744, 749-750 [1996]; Chung vWang, 79 AD3d 693, 694 [2010]; R.U.M.C. Realty Corp. v JCF Assoc., LLC, 51 AD3d 993,994-995 [2008]). Viewing the complaint in the light most favorable to the plaintiffs andaccepting the factual allegations as true, the complaint failed to sufficiently allege thatLizardos engaged in any conduct which resulted in the breach of a contract (see Ferrandino & Son, Inc. vWheaton Bldrs., Inc., LLC, 82 AD3d 1035, 1036 [2011]; Burns JacksonMiller Summit & Spitzer v Lindner, 88 AD2d 50, 72 [1982], affd 59NY2d 314 [1983]; see also NBT Bancorp v Fleet/Norstar Fin. Group, 87 NY2d614, 621 [1996]; cf. Foster v Churchill, 87 NY2d at 749-750; Micro Tech. Intl., Inc. v ArtechInfo. Sys., LLC, 62 AD3d 764 [2009]). Skelos, J.P., Sgroi, Cohen and LaSalle,JJ., concur.