Bigman v. Dime Sav. Bank of New York, FSB

• Decision Date: 25 September 1989
• Citation: Bigman v. Dime Sav. Bank of New York, FSB, 545 N.Y.S.2d 721, 153 A.D.2d 912 (N.Y. App. Div. 1989)
• Parties: Harry BIGMAN, et al., Respondents, v. The DIME SAVINGS BANK OF NEW YORK, FSB, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 721

545 N.Y.S.2d 721

153 A.D.2d 912

Harry BIGMAN, et al., Respondents, v. The DIME SAVINGS BANK OF NEW YORK, FSB, Appellant.

Supreme Court, Appellate Division Second Department.

Sept. 25, 1989.

Corbin Silverman & Sanserino, New York City (Sol Neil Corbin, Joseph W. Muccia and John J. Gallagher, of counsel), for appellant.

Fredrick Lewis, New York City (Russell S. Burman and Eric Edelstein, of counsel), for respondents.

Before KUNZEMAN, J.P., and RUBIN, EIBER and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for tortious interference with business relations, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Graci, J.), dated May 2, 1988, as denied those branches of its motion which were to compel disclosure by three nonparty witnesses MBK Holding Company, Inc., James Cappa, and Rooplall Premlall, and to punish pursuant to CPLR 2308)(a) one nonparty witness for failing to respond to a subpoena.

ORDERED that on the court's own motion the appellant's notice of appeal is treated as an application for leave to appeal from those portions of the order which are not appealable as a matter of right (see, Sainz v. New York City Health & Hosp. Corp., 106 A.D.2d 500, 483 N.Y.S.2d 37), the application is referred to Justice Rosenblatt, and leave to appeal is granted by Justice Rosenblatt, and it is further,

ORDERED that the order is modified, on the law, by deleting the provision thereof which denied those branches of the defendant's motion which were to compel disclosure from MBK Holding Company, Inc., James Cappa and Rooplall Premlall, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the depositions of the nonparty witnesses MBK Holding Company, Inc., Cappa and Premlall shall be held upon written notice of not less than 10 days, to be provided by the defendant, or at such time as the parties may agree.

The plaintiffs are partners in Bigman and Bigman, a two-partner law firm. The complaint alleges that the defendant savings bank refused to give mortgages to any individuals or entities represented by the plaintiffs, and claims damages for tortious interference with the plaintiffs' business relations, defamation, and tortious interference with the plaintiffs' contracts with its clients. In addition, the plaintiffs seek to enjoin the defendant bank, inter alia, from "refus[ing] to proceed with mortgage commitments involving clients of the plaintiffs".

In its answer, the defendant bank asserts, inter alia, that its decision to decline to close mortgage loans was a bona fide business decision, and that the plaintiffs failed to act in good faith and to cooperate with the defendant with respect to the mortgage applications of the plaintiffs' clients. Specifically, the defendant states that it discovered a pattern of serious irregularities in connection with loan applications of the plaintiffs' clients, and, as a result, issued an internal memorandum instructing its employees that the bank would no longer accept mortgage applications from clients of the plaintiffs' firm.

Shortly after its decision to no longer accept mortgage applications from the plaintiffs' firm's clients, the defendant bank closed 12 mortgage loans for the purchase of cooperative apartments in a project known as Walden Terrace, Inc., in Rego Park, Queens. Each of those applications listed MBK Holding Company, Inc. (hereinafter MBK) as the seller of the apartment, and each listed MBK's address at what turned out to be...