Aug. Constr. Grp. v. DeGroat
| Docket Number | Index No. 802374/23E |
| Decision Date | 21 June 2023 |
| Citation | 2023 NY Slip Op 50604 (U) |
| Parties | August Construction Group, Inc. AND ANDREW TONAJ, Plaintiff(s), v. Kevin DeGroat, Defendant. |
| Court | New York Supreme Court |
Unpublished Opinion
Counsel for plaintiffs: Law Offices of Brian K, Bernstein P.C.
Counsel for defendant: Bond, Schoeneck & King, PLLC
In this action for, inter alia, tortious interference with contract, defendant moves seeking an order dismissing the complaint pursuant to CPLR § 3211(a)(7). Defendant avers that thecomplaint fails to plead specific, and at times necessary facts sufficient to establish each and every cause of action asserted by plaintiffs. Plaintiffs oppose the instant motion, asserting that the complaint sufficiently pleads the causes of action asserted therein. Plaintiffs also cross-move seeking an order pursuant to CPLR § 3025(b) granting them leave to amend the complaint to address the pleading deficiencies raised by defendant in his motion. Plaintiffs contend that in light of the infancy of the instant litigation, defendant will not be prejudiced by the amendment. Defendant opposes the instant cross-motion asserting that because the proposed amended complaint is afflicted with the same fatal deficiencies on which his motion is premised, the amended complaint, failing to plead the causes of action asserted, is palpably insufficient or patently devoid of merit.
For the reasons that follow hereinafter, defendant's motion is granted and plaintiffs' cross-motion is granted, in part.
The instant action is for tortious interference with contract, tortious interference with prospective economic advantage, prima facie tort, and libel per se. The complaint alleges that on August 16, 2018, plaintiff AUGUST CONSTRUCTION GROUP, INC. (August) entered into an agreement with nonparty the College of Mount Saint Vincent (CMSV), whereby August was retained to perform general contracting work, namely the construction of a residence hall and a nursing simulation lab on CMSV's campus (the project). Defendant, CMSV's Vice President of Operations, who was not a party to the foregoing agreement, nevertheless served as the primary contact with both August and plaintiff ANDREW TONAJ (Tonaj) - August's Chief Executive Officer - with respect to the agreement. On August 31, CMSV, by counsel, terminated the foregoing agreement. At the time of termination, CMSV owed August $1,370,506.50 with respect to the work in the agreement. As such, with regard to the sums alleged to be due, CMSV and August have initiated mediation proceedings, to which neither defendant nor Tonaj are parties. On April 20, 2022, defendant sent an email to plaintiffs' subcontractors/vendors apprising them that all punch list items on the project had been completed, which statements were at variance with defendant's statements to August. Thereafter, on April 22, 2022, defendant sent an email to plaintiffs' subcontractors/vendors on the project, in defendant's personal capacity and with no authority from CMSV, falsely and disparagingly apprising them that other than final retainage payments and less any charge backs, with respect to the project, August had been paid in full, such that all subcontractors/vendors should have been fully paid. Defendant also invited the foregoing subcontractors to work directly with CMSV, which circumvented and damaged the relationship between August and its subcontractors. It is alleged that from the inception, defendant acted with personal animus toward Tonaj, that defendant knew or should have known about the relationships and contracts between August and its subcontractors/vendors, and about the contract between August and CMSV. It is further alleged that defendant knowingly and tortiously interfered with the relationship between Tonaj and his subcontractor/vendors, the contracts between them, and the contract between August and CMSV. It is alleged that defendant intentionally, willfully and maliciously interfered with plaintiffs' business relationships with their subcontractors/vendors, such that he interfered with plaintiffs' prospective economic advantage. Defendant's representations to the subcontractor/vendors were knowingly false and materially interfered with the contracts between August and their subcontractor/vendors and as a result thereof, the subcontractors did not return to the project, which made it impossible and/or materially impaired August's ability to perform remedial work at on the project, as requested by CMSV. Moreover, the foregoing impaired and/or interfered with August's ability to complete the work required by the agreement between CMSV and August, and precipitated CMSV's termination of the Agreement. Lastly, defendant's conduct created a hostile relationship between Tonaj and at least one subcontractor inasmuch as the subcontractor threatened Tonaj and his family.
Based on the foregoing, plaintiffs interpose six causes of action. The first is for tortious interference with contract between August and its subcontractors/vendors. It is alleged that defendant was aware of the valid and enforceable agreements between August and its subcontractors/vendors and intentionally interfered with the same by falsely informing them that CMSV had fully paid August and that all of August's subcontractors/vendors should have been paid in full. The foregoing is alleged to have materially interfered with the foregoing contracts, in that August could not get the subcontractors to return to the project, thereby significantly impairing August's ability to complete the project. The foregoing is alleged to have damaged plaintiffs in the amount of $1,370,506.50. The second cause of action is also for tortious interference with contract, except that it is alleged that defendant interfered with the agreement between August and CMSV. The allegations in support of this cause of action are identical to those pleaded with respect to the first cause of action, except that it is alleged that defendant's conduct interfered with the contract between August and CMSV, thereby contributing to its termination. The third cause of action is for tortious interference with August's prospective economic advantage. It is alleged that defendant willfully and maliciously, with intent to cause harm, interfered with August's business relationships with its subcontractors, thereby interfering with August's prospective economic advantage. The foregoing is alleged to have damaged plaintiffs in the amount of $467,979.26. The fourth cause of action is for tortious interference with Tonaj's prospective economic advantage. It is alleged that defendant willfully and maliciously, with intent to cause harm, interfered with Tonaj's business relationships with its subcontractors, thereby interfering with Tonaj's prospective economic advantage. The foregoing is alleged to have damaged plaintiffs in the amount of $500,000. The fifth cause of action is for prima facie tort on behalf of Tonaj. It is alleged that by sending Tonaj's subcontractors emails on April 20 and 22, 2022, defendant, acting with personal animus toward Tonaj, intentionally inflicted inexcusable damage upon Tonaj. Specifically, defendant negatively and permanently damaged Tonaj's relationship with his subcontractors. It is alleged that defendant willfully and maliciously, with intent to cause harm, interfered with Tonaj's business relationships with its subcontractors, thereby interfering with Tonaj's prospective economic advantage. The foregoing is alleged to have damaged plaintiffs in the amount of $467,979.26. The sixth and last cause of action is for libel per se. It is alleged that the email sent to plaintiffs' subcontractors/vendors on April 22, 2022, conveyed false and defamatory information, which injured plaintiffs' business, trade and/or profession. The foregoing is alleged to have damaged plaintiffs in the amount of $500,000.
Defendant's motion to dismiss is granted. Significantly, the allegations in the complaint, taken as true, fail to sufficiently state any of the causes of action alleged therein.
On a motion to dismiss a complaint pursuant to CPLR § 3211(a)(7), all allegations in the complaint are deemed to be true (Sokoloff v Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414 [2001]; Cron v Hargro Fabrics, 91 N.Y.2d 362, 366 [1998]). All reasonable inferences which can be drawn from the complaint and the allegations therein stated shall be resolved in favor of the plaintiff (Cron at 366). In opposition to such a motion a plaintiff may submit affidavits to remedy defects in the complaint (id.). If an affidavit is submitted for that purpose, it shall be given its most favorable intendment (id.). The court's role when analyzing the complaint in the context of a motion to dismiss is to determine whether the facts as alleged fit within any cognizable legal theory (Sokoloff at 414). In fact the law mandates that the court's inquiry be not limited solely to deciding whether plaintiff has pled the cause of action intended, but instead, the court must determine whether the plaintiff has pled any cognizable cause of action (Leon v Martinez, 84 N.Y.2d 83, 88 [1994] ["(T)he criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one."]). However, "when evidentiary material [in support of dismissal] is considered the criterion is whether the proponent of the pleading has a cause of action not whether he has stated one" (Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]).
Significantly documentary evidence means judicial records, judgments orders, contracts, deeds, wills, mortgages and "a paper whose content is essentially undeniable and which, assuming the verity of its contents and the validity...
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