Andrew Greenberg Inc. v. Sir-Tech Software Inc., SIR-TECH

• Decision Date: 31 December 1997
• Docket Number: No. 2,SIR-TECH,No. 1,1,2
• Parties: , 1997 N.Y. Slip Op. 11,426 ANDREW GREENBERG, INC., Plaintiff, v.SOFTWARE, INC. et al., Defendants. (Action)SOFTWARE, INC., Appellant, v. Andrew GREENBERG et al., Respondents. (Action)
• Court: New York Supreme Court — Appellate Division

Page 83

667 N.Y.S.2d 83

245 A.D.2d 1004, 1997 N.Y. Slip Op. 11,426

ANDREW GREENBERG, INC., Plaintiff, v. SIR-TECH SOFTWARE, INC. et al., Defendants. (Action No. 1.)

SIR-TECH SOFTWARE, INC., Appellant, v. Andrew GREENBERG et al., Respondents. (Action No. 2.)

Supreme Court, Appellate Division,

Third Department.

Dec. 31, 1997.

Nixon, Hargrave, Devans & Doyle L.L.P. (James D. Kole, of counsel), Rochester, for Sir-Tech Software Inc.

Elman & Weiss P.C. (Matthew J. Weiss, of counsel), New York City, for Andrew Greenberg and another.

Greenberg & Gaiman L.L.P. (Robert S. Gaiman, of counsel), Rockhill, for Orseck, Orseck, Greenberg & Gaiman.

Before MIKOLL, J.P., and MERCURE, CREW, CASEY and YESAWICH, JJ.

MERCURE, Justice.

Appeal from an order of the Supreme Court (Bradley, J.), entered May 1, 1997 in Sullivan County, which, inter alia, granted defendants' motions for summary judgment dismissing the complaint in action No. 2.

Andrew Greenberg Inc. (hereinafter AGI) is the creator of the computer game "Wizardry". In 1981, AGI granted Sir-Tech Software Inc. an exclusive license to manufacture and market Wizardry, related products and any subsequent Wizardry games and related products. As here relevant, the contract between AGI and Sir-Tech provided for graduated royalty payments to AGI and also that all Wizardry games and Wizardry-related products be copyrighted, with copyrighting notices recognizing AGI as a co-owner. Sir-Tech thereafter proceeded to market Wizardry, Wizardry-related products and, under the authorship of game designer David W. Bradley, subsequent Wizardry games.

In June 1991, at a time when Bradley was involved in developing the Wizardry game "Crusaders of the Dark Savant" (hereinafter Crusaders), AGI commenced an action against Sir-Tech and Bradley in U.S. District Court for the Northern District of New York, alleging causes of action for trademark and copyright infringement and seeking an accounting and for fraud. District Court dismissed AGI's second cause of action (trademark infringement and fraudulent trademark registration) with prejudice, dismissed AGI's third and fourth causes of action (accounting and fraud) without prejudice pursuant to 28 U.S.C. § 1367(c)(3) (declination of supplemental jurisdiction over State claims), and also denied Sir-Tech's motion for sanctions. In February 1992, the Federal action was dismissed against Bradley with prejudice by stipulation of the parties.

In April 1992, AGI pursued its claim for an accounting against Sir-Tech and a related entity in action No. 1. In August 1992, Sir-Tech responded with action No. 2, alleging that AGI, its principal, Andrew Greenberg, and their attorneys, the law firm of Orseck, Orseck, Greenberg & Gaiman (hereinafter collectively referred to as defendants), tortiously interfered with Sir-Tech's contract with Bradley for development of Crusaders. Specifically, the complaint in action No. 2 alleges that Bradley's contract with Sir-Tech required him to deliver the completed Crusaders game on or before September 1, 1991, that although Bradley was on schedule with his work at the time the Federal court action was commenced defendants' assertion of claims against Bradley caused him to stop working on Crusaders, and that as a result Sir-Tech missed the 1991 Christmas selling season, causing it to lose an investment in promotional materials and sales totaling $950,000. After considerable discovery and motion practice that need not be detailed here, Supreme Court granted defendants' motions for summary judgment and dismissed the complaint in action No. 2. Sir-Tech appeals.

We affirm. In order to defeat defendants' prima facie showing on the summary judgment motion, Sir-Tech was obligated to support its tortious interference cause of action with competent evidence tending to establish (1) its contract with Bradley, (2) defendants' knowledge of the existence of the contract, (3) that the contract was not carried out, (4) that defendants initiated the Federal court action with intent to induce Bradley's breach of the contract, (...