Empire Gas Station Inc. v. 115 Southside Drive Owego Inc.

• Decision Date: 28 September 2022
• Docket Number: Index No. 2022-0006252
• Citation: 2022 NY Slip Op 33250 (U)
• Parties: EMPIRE GAS STATION INC. d/b/a OWEGO MOBIL, SALDRITA LLC and DRITARRACI, Plaintiffs, v. 115 SOUTHSIDE DRIVE OWEGO INC. (a/k/a 105 Southside Rive Owego, LLC), (a/k/a 115 Southside Drive Owego Inc.) and BAHARUL ISLAM, Defendants.
• Court: New York Supreme Court

2022 NY Slip Op 33250(U)

EMPIRE GAS STATION INC. d/b/a OWEGO MOBIL, SALDRITA LLC and DRITARRACI, Plaintiffs,
v.
115 SOUTHSIDE DRIVE OWEGO INC. (a/k/a 105 Southside Rive Owego, LLC), (a/k/a 115 Southside Drive Owego Inc.) and BAHARUL ISLAM, Defendants.

Index No. 2022-0006252

Supreme Court, Tioga County

September 28, 2022

Unpublished Opinion

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At a Term of the Supreme Court of the State of New York held in and for the Sixth Judicial District at the Tioga County Courthouse, Owego, New York, on the 22nd day of July 2022, by Microsoft Teams argument.

Counsel for Plaintiffs: THE CROSSMORE LAW OFFICE By: Marissa Johnson, Esq.

Counsel for Defendants: COUGHLIN &GERHART LLP By: Keith A. O'Hara, Esq.

PRESENT: HON. EUGENE D. FAUGHNAN Justice Presiding

DECISION AND ORDER

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EUGENE D. FAUGHNAN, J.S.C.

This matter is before the Court to consider Defendants' motion to dismiss the Plaintiffs' Complaint pursuant to CPLR 3211 (a)(7). Counsel for the parties appeared for oral argument on July 22, 2022, conducted virtually by Microsoft Teams. After due deliberation, this Decision and Order constitutes the Court's determination with respect to the pending motion.

BACKGROUND FACTS

Plaintiffs and Defendants operate competing gas stations in Owego, NY. Drita Rraci is President of Empire Gas Station, Inc. d/b/a Owego Mobil and manages the day-to-day operations of the Owego Mobil gas station/convenience store. Baharul Islam is a member of Defendant business.

Plaintiff Empire Gas Station (d/b/a Owego Mobil) and Defendant, 115 Southside Drive, Inc., had a business partner in common, Mr. Salvatore Liga, Esq., who passed away in January 2022. Defendant Baharul Islam was involved in the formation and purchase of Plaintiff's gas station, and is also a director and officer of Empire Gas. The business relationship between these parties and entities is somewhat murky and opaque, but the facts giving rise to this action are a bit more straightforward.

Plaintiff Empire Gas Station has a contract with Mystic Oil Company which requires Plaintiff to purchase gasoline exclusively from ExxonMobil Gas ("Mobil") or pay a substantial penalty to purchase gasoline from an alternate supplier. Plaintiff contends that the relationship between Plaintiffs and Defendants deteriorated, and that Defendants contacted Mobil and "told the gasoline supplier about its ongoing soured relations with the [P]laintiffs." The Complaint further alleges that due to these conversations, Mobil began refusing to deliver gasoline to Plaintiffs' business, resulting in Plaintiff not being able to obtain or sell gasoline since then. The Complaint sets forth two causes of action- tortious interference with contract and "interference with contractual or business relations."

Defendants filed this motion to dismiss pursuant to CPLR 3211 (a)(7), contending that: 1) there is no allegation that a third party breached a contract between the third party and

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Plaintiff, which is necessary in a tortious interference with contract claim, and 2) the Complaint fails to allege facts that would satisfy the requirements for a claim of intentional interference with business relations. In support, Defendants submitted an affidavit from Mr. . Islam, an affirmation from Defendants' counsel, and a Memorandum of Law. Plaintiffs' attorney, Marissa A. Johnson, Esq., filed an affirmation in opposition to the motion with two Exhibits and Memorandum of Law. Defendants' counsel, Keith O'Hara filed an affirmation in reply.

LEGAL DISCUSSION AND ANALYSIS

Defendants seek dismissal pursuant to CPLR 3211 (a)(7)-failure to state a cause of action. "The grounds for dismissal under CPLR 3211 (a) (7) are ... strictly limited; the court is not allowed to render a determination upon a thorough review of the relevant facts adduced by both parties, but rather is substantially more constrained in its review, examining only the plaintiffs pleadings and affidavits." Carr v. Wegmans Food Mkts., Inc., 182 A.D.3d 667, 668 (3^rd Dept. 2020) citing Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635 (1976); Sokol v. Leader, 74 A.D.3d 1180,1181 (2nd Dept. 2010). "Notwithstanding the broad pleading standard, bare legal conclusions with no factual specificity do not suffice to withstand a motion to dismiss ...[and] '[d]ismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery.'" Mid-Hudson Valley Fed. Credit Union v. Quartararo &Lois, PLLC 155 A.D.3d 1218, 1219 (3^rd Dept. 2017) [internal citations omitted] quoting Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137,142 (2017).

While the court is normally constrained to the facts as pleaded in the complaint, on a 3211 (a) (7) motion, "a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." Leon v Martinez, 84 N.Y.2d 83,88 (1994) [internal quotation marks and citations omitted]. Under this section, the court ''must afford the complaint a liberal construction, accept the facts as alleged in the pleading as true,

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confer on the plaintiff(s) the benefit of every possible inference and determine whether the facts as alleged fit within any cognizable legal theory." Tor ok v. Moore's Flatwork &Founds., LLC, 106 A.D.3d 1421,1421 (3^rd Dept. 2013) [internal quotation marks and citation omitted]; NYAHSA Servs., Inc., Self-Ins. Trust v. People Care Inc., 141 A.D.3d 785, 788 (3^rd Dept. 2016); Lewis v. DiMaggio, 115 A.D.3d 1042 (3^rd Dept. 2014); Lopes v. Bain, 82 A.D.3d 1553 (3^rd Dept. 2011); see Tenney v. Hodgson Russ, LLP, 97 A.D.3d 1089,1090 (3^rd Dept. 2012); Leon v. Martinez, 84 N.Y.2d 83. "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss." EBC I, Inc. v. Goldman Sachs &Co., 5 N.Y.3d 11,19 (2005); see also AG Capital Funding Partners, L.P. v. State St. Bank &Trust Co., 5 N.Y.3d 582 (2005); Jacobs v. Macy's East, Inc., 262 A.D.2d 607 (2^nd Dept. 1999).

The Court of Appeals has stated:

Initially, the sole criterion is whether the pleading states a cause of action, and if from its four comers factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail (see Foley v DAgostino, 21 A.D.2d 60,64-65; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3211:24, p 31; 4 Weinstein. Korn-Miller, NY Civ Prac, par 3211.36). When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material

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