534 East 11th St. Hous. Dev. Fund Corp. v. Hendrick

Decision Date20 December 2011
Citation90 A.D.3d 541,2011 N.Y. Slip Op. 09181,935 N.Y.S.2d 23
Parties534 EAST 11TH STREET HOUSING DEVELOPMENT FUND CORPORATION, Plaintiff–Respondent, v. Peter HENDRICK, Defendant–Appellant.
CourtNew York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09181
90 A.D.3d 541
935 N.Y.S.2d 23

534 EAST 11TH STREET HOUSING DEVELOPMENT FUND CORPORATION, Plaintiff–Respondent,
v.
Peter HENDRICK, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Dec. 20, 2011.


[935 N.Y.S.2d 24]

Finder Novick Kerrigan LLP, New York (Thomas P. Kerrigan of counsel), for appellant.

Edward Joseph Filemyr IV, New York, for respondent.

GONZALEZ, P.J., MAZZARELLI, ACOSTA, SWEENY, ROMÁN, JJ.

[90 A.D.3d 541] 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 affirmative defenses and third and fourth counterclaims, unanimously modified, on the law, to reinstate the affirmative 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 bears the burden of demonstrating that the defenses are without merit as a matter of law ( see e.g. [90 A.D.3d 542] Vita v. New York Waste Servs., LLC, 34 A.D.3d 559, 559, 824 N.Y.S.2d 177 [2006]; Santilli v. Allstate Ins. Co., 19 A.D.3d 1031, 1032, 797 N.Y.S.2d 226 [2005] ). In deciding a motion to dismiss a defense, the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed ( Warwick v. Cruz, 270 A.D.2d 255, 255, 704 N.Y.S.2d 849 [2000] ). A defense should not be stricken where there are questions of fact requiring trial ( see e.g. Atlas Feather Corp. v. Pine Top Ins. Co., 128 A.D.2d 578, 578–579, 512 N.Y.S.2d 844 [1987] ).

While not listed under the sections specifically titled for each defense, defendant pled factual allegations in the body of his answer sufficient to give notice of what he intends to prove under his defenses ( see LoPinto v. Roldos, 235 A.D.2d 233, 652 N.Y.S.2d 508 [1997] ).

Defendant also sufficiently pled a counterclaim for tortious interference with a business relationship. A claim for tortious interference with a prospective business relationship (i.e., an economic advantage) must allege: (1) the defendant's knowledge of a business relationship between the plaintiff and a third party; (2) the defendant's intentional interference with the relationship; (3) that the defendant acted by the use of wrongful means or with the sole purpose of malice; and (4) resulting injury to the business relationship ( see NBT Bancorp v....

To continue reading

Request your trial
104 cases
  • Yong Ki Hong & Hwan Media, Inc. v. KBS Am., Inc.
    • United States
    • U.S. District Court — Eastern District of New York
    • 24 Septiembre 2013
    ...the sole purpose of malice; and (4) resulting injury to the business relationship.” 534 East 11th Street Housing Dev. Fund Corp. v. Hendrick, 90 A.D.3d 541, 542, 935 N.Y.S.2d 23, 24 (1st Dep't 2011). “[I]t is not necessary that the prospective relation be expected to be reduced to a formal,......
  • Yong Ki Hong v. KBS Am., Inc., 05-CV-1177 (ENV) (VMS)
    • United States
    • U.S. District Court — Eastern District of New York
    • 19 Septiembre 2013
    ...the sole purpose of malice; and (4) resulting injury to the business relationship." 534 East 11th Street Housing Dev. Fund Corp. v. Hendrick, 90 A.D.3d 541, 542, 935 N.Y.S.2d 23, 24 (1st Dep't 2011). "[I]t is not necessary that the prospective relation be expected to be reduced to a formal,......
  • 544 W. 157th St. Hous. Dev. Fund Corp. v. Alliance Prop. Mgmt. & Dev., Inc., Index No. 104203/2012
    • United States
    • New York Supreme Court
    • 22 Noviembre 2013
    ...admissible evidence, but plaintiff's burden to establish that the defenses are legally inapplicable. 534 E. 11th St. Hous.Dev. Fund Corp. v. Hendrick, 90 A.D.3d 541, 542 (1st Dep't 2011); Rosenzweiq v. Givens, 62 A.D.3d 1, 7 (1st Dep't), aff'd, 13 N.Y.3d 774, 775-76 (2009); Vita v. New York......
  • Marin v. AI Holdings (USA) Corp.
    • United States
    • New York Supreme Court
    • 17 Mayo 2012
    ...or with the sole purpose of malice; and (4) resulting injury to the business relationship” (534 East 11th Street Hous. Dev. Fund Corp. v. Hendrick 90 A.D.3d 541, 542, 935 N.Y.S.2d 23 [1st Dept 2011] ). Plaintiff alleges that he and another AFI subsidiary senior executive were terminated aft......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT