Bank of New York v. Berisford Intern.

• Decision Date: 25 February 1993
• Court: New York Supreme Court — Appellate Division
• Parties: The BANK OF NEW YORK, Plaintiff-Respondent, v. BERISFORD INTERNATIONAL, formerly known as S. & W. Berisford, et al., Defendants, and John Neumann, Defendant-Appellant.

Page 152

594 N.Y.S.2d 152

190 A.D.2d 622

The BANK OF NEW YORK, Plaintiff-Respondent, v. BERISFORD INTERNATIONAL, formerly known as S. & W.

Berisford, et al., Defendants,

and

John Neumann, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Feb. 25, 1993.

Before MURPHY, P.J., and CARRO, ROSENBERGER and ASCH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Walter Schackman, J.), entered on or about January 8, 1992, which denied defendants' motion to dismiss plaintiff's complaint, unanimously affirmed, with costs.

Plaintiff satisfactorily pleaded the necessary elements to allege a cause of action for tortious interference with contractual relations (see, Israel v. Wood Dolson Co., 1 N.Y.2d 116, 120, 151 N.Y.S.2d 1, 134 N.E.2d 97). Neumann is not immune from liability on the ground that he was the general partner of the entity that allegedly breached the contract, as it is alleged that he was not acting in good faith and committed wholly independent torts directed at plaintiff for personal pecuniary gain (see, Murtha v. Yonkers Child Care Assn., 45 N.Y.2d 913, 195, 411 N.Y.S.2d 219, 383 N.E.2d 865; Ehrlich v. Alper, 1 A.D.2d 875, 149 N.Y.S.2d 562). Since the instant claim for tortious interference with contractual relations concerns a contract with a finite term (as opposed to an "at will" contract), Neumann's claimed defense of economic justification is unfounded (see, Guard-Life v. S. Parker Hardware, 50 N.Y.2d 183, 428 N.Y.S.2d 628, 406 N.E.2d 445).

In light of the assertions that Neumann, inter alia, acted with malice in inducing the alleged tortious interference, and since plaintiff sufficiently pleaded special damages, it has adequately stated a cause of action for prima facie tort (see, Freihofer v. Hearst, 65 N.Y.2d 135, 142-143, 490 N.Y.S.2d 735, 480 N.E.2d 349). Notably, plaintiff may plead prima facie tort even though it has also pleaded a specific tort seeking the same damages (id., at 143, 490 N.Y.S.2d 735, 480 N.E.2d 349). While Neumann claims that his conduct was legitimately based on economic self-interest, said claim merely creates a factual issue for trial (see, L/M Ninety CM Corp. v. 2431 Broadway Realty Co., 170 A.D.2d 373, 373, 566 N.Y.S.2d 277).

Finally, as the causes of action herein concern tort claims and seek tort damages, the "non-recourse" language of the notes and mortgage are not relevant to these claims and thus the instant action cannot be dismissed on the grounds of...