Grocery Leasing Corp. v. P & C Merrick Realty Co.

• Decision Date: 18 August 2021
• Docket Number: Index No. 707253/17,2020–03947
• Citation: 197 A.D.3d 628,153 N.Y.S.3d 82
• Parties: GROCERY LEASING CORP., respondent, v. P & C MERRICK REALTY CO., LLC, defendant, 104–16, LLC, et al., appellants.
• Court: New York Supreme Court — Appellate Division

197 A.D.3d 628

153 N.Y.S.3d 82

GROCERY LEASING CORP., respondent,

v. P & C MERRICK REALTY CO., LLC, defendant,104–16, LLC, et al., appellants.

2020–03947

Index No. 707253/17

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

Argued—April 8, 2021

August 18, 2021

Bruno, Gerbino, Soriano & Aitken, LLP, Melville, N.Y. (Susan B. Eisner of counsel), for appellants.

Kaplan Levenson, P.C., New York, N.Y. (Steven M. Kaplan of counsel), for respondent.

HECTOR D. LASALLE, P.J., MARK C. DILLON, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendants 104–16, LLC, and Golden Progress, Inc., appeal from an order of the Supreme Court, Queens County (Marguerite A. Grays, J.), entered May 4, 2020. The order denied those defendants’ motion pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

The relevant background facts are set forth in this Court's decision and order on related appeals ( Grocery Leasing Corp. v. P & C Merrick Realty Co., LLC, 197 A.D.3d 625, 153 N.Y.S.3d 98 [Appellate Division Docket Nos. 2018–01875, 2018–04328 ; decided herewith]).

In addition, as relevant to this appeal, in January 2018, the plaintiff served an amended complaint without leave of court, after which the Supreme Court granted leave to the defendants 104–16, LLC, and Golden Progress, Inc. (hereinafter together the defendants), to move to dismiss. The defendants subsequently moved pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them. Specifically, the defendants moved pursuant to CPLR 3211(a)(7) and (10) to dismiss the first cause of action, and pursuant to CPLR 3211(a)(7) to dismiss the second cause of action. In an order entered May 4, 2020, the court denied the motion. The defendants appeal.

The Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) and (10) to dismiss the first cause of action. A defendant can only move to dismiss a cause of action where that cause of action is actually asserted against the moving defendant (see CPLR 3211[a] ). Here, the first cause of action, which alleged, among other things, breach of contract, was only asserted against the defendant P & C Merrick Realty Co., LLC (hereinafter P & C Merrick), under the express language of paragraph 26 of the amended complaint. Thus, the defendants are unable to seek dismissal of the first cause of action (see Municipal Serv. Real Estate Co. v. D.B. & M. Holding Corp., 257 N.Y. 423, 428–429, 178 N.E. 745 ).

The second cause of action alleged tortious interference with contract against the defendants. "On a motion to dismiss pursuant to CPLR 3211(a)(7), the pleading must be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory" ( Minico Ins. Agency, LLC v. B & M Cleanup Servs., 165 A.D.3d 776, 776, 86 N.Y.S.3d 515 ; see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). In opposition to a CPLR 3211(a) motion, "a plaintiff may submit affidavits to remedy defects in the complaint and preserve inartfully pleaded, but potentially meritorious claims. Though limited to that purpose, such additional submissions of the plaintiff, if any, will similarly be given their most favorable intendment" ( Cron v. Hargro Fabrics, Inc. 91 N.Y.2d 362, 366, 670 N.Y.S.2d 973, 694 N.E.2d 56 [citation and internal quotation marks omitted]; see Garcia v. Polsky, Shouldice & Rosen, P.C., 161 A.D.3d 828, 830, 77 N.Y.S.3d 424 ).

"The elements of a cause of action alleging tortious interference with contract are: (1) the existence of a valid contract between the plaintiff and a third party, (2) the defendant's knowledge of that contract, (3) the defendant's intentional procurement of a third-party's breach of that contract without justification, and (4) damages" ( Nagan Constr., Inc. v. Monsignor McClancy Mem. High Sch., 117 A.D.3d 1005, 1006, 986 N.Y.S.2d 532 ; see Lama Holding Co. v. Smith Barney, Inc., 88 N.Y.2d 413, 424, 646 N.Y.S.2d 76, 668 N.E.2d 1370 ; Oxford Health Plans [NY], Inc. v. Biomed Pharms., Inc., 181 A.D.3d 808, 814, 122 N.Y.S.3d 47 ). "Further, the plaintiff ‘must specifically allege that the contract would not have...