Dashdevs LLC v. Capital Markets Placement, Inc.

• Decision Date: 17 November 2022
• Docket Number: 16700,Index No. 655993/18,Case No. 2021–04191
• Citation: Dashdevs LLC v. Capital Markets Placement, Inc., 210 A.D.3d 525, 179 N.Y.S.3d 29 (N.Y. App. Div. 2022)
• Parties: DASHDEVS LLC, Plaintiff–Respondent, v. CAPITAL MARKETS PLACEMENT, INC., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

210 A.D.3d 525

179 N.Y.S.3d 29

DASHDEVS LLC, Plaintiff–Respondent,

v.CAPITAL MARKETS PLACEMENT, INC., Defendant–Appellant.

16700

Index No. 655993/18

Case No. 2021–04191

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

Entered November 17, 2022

Long & Associates PLLC, New York (Ryan E. Long of counsel), for appellant.

Borg Law LLP, New York (Jonathan M. Borg of counsel), for respondent.

Kapnick, J.P., Webber, Friedman, Gesmer, Singh, JJ.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered October 15, 2021, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion to dismiss defendant's counterclaims for tortious interference with contract, abuse of process, and fraud, and granted plaintiff's alternative motion for summary judgment dismissing defendant's counterclaim for defamation, unanimously affirmed, with costs.

Defendant failed to state a cause of action for tortious interference with contract, as it failed to allege the existence of a contract between defendant and its clients that had been breached (see Amato v. New York City Dept. of Parks & Recreation, 110 A.D.3d 439, 440, 973 N.Y.S.2d 29 [1st Dept. 2013] ; see generally Foster v. Churchill, 87 N.Y.2d 744, 749–750, 642 N.Y.S.2d 583, 665 N.E.2d 153 [1996] ). Further, the allegations that plaintiff caused defendant's clients to terminate their relationship with defendant by "defam[ing]" defendant and "woo[ing]" the clients were vague, conclusory, and based on speculation (see Carlyle, LLC v. Quik Park 1633 Garage LLC, 160 A.D.3d 476, 477, 75 N.Y.S.3d 139 [1st Dept. 2018] ).

The court correctly granted plaintiff summary judgment dismissing the counterclaim for defamation on the ground that it was barred by the one-year statute of limitations (see CPLR 215[3] ). The alleged defamatory statements by plaintiff occurred in July 2018, over two years before defendant served its answer containing the counterclaim (see CPLR 215[3] ; Melious v. Besignano, 125 A.D.3d 727, 728, 4 N.Y.S.3d 228 [2d Dept. 2015] ). Defendant's allegation that the defamation was "ongoing" was "wholly speculative" ( Smulyan v. New York Liquidation Bur., 158 A.D.3d 456, 457, 71 N.Y.S.3d 412 [1st Dept. 2018] ).

The counterclaim for abuse of process was correctly dismissed. Defendant failed to set forth facts showing that plaintiff's service of subpoenas and restraining notices was motivated by an intent to do harm, or to achieve any purpose other than the legitimate purpose of enforcing its judgment (see Zeckendorf v. Kerry H. Lutz, P.C., 282 A.D.2d 295, 295–296, 723 N.Y.S.2d 360 [1st Dept. 2001] ; Stroock & Stroock & Lavan v. Beltramini, 157 A.D.2d 590, 591, 550 N.Y.S.2d 337 [1st Dept. 1990] ). Defendant also failed to allege facts showing that plaintiff's failure to serve its motion for a default judgment, or copies of the subpoenas with restraining notices, on defendant's counsel was motivated by an improper purpose.

Furthermore, defendant failed to plead its counterclaim for fraud with the requisite particularity (see CPLR 3016[b] ). The allegations made "upon information and belief" were insufficient to support the claim (see Facebook, Inc. v. DLA Piper LLP (US), 134 A.D.3d 610, 615, 23 N.Y.S.3d 173 [1st Dept. 2015], lv denied 28 N.Y.3d 903, 2016 WL 4820902 [2016] ), and defendant failed to allege any facts from which...