Kronish Lieb Weiner & Hellman Llp v. Tahari, Ltd.

• Decision Date: 28 December 2006
• Docket Number: 9946.,9947.
• Citation: 35 A.D.3d 317,2006 NY Slip Op 10134,829 N.Y.S.2d 7
• Court: New York Supreme Court — Appellate Division
• Parties: KRONISH LIEB WEINER & HELLMAN LLP, Respondent-Appellant, v. TAHARI, LTD., Appellant-Respondent. (And a Third-Party Action.)

35 A.D.3d 317

829 N.Y.S.2d 7

2006 NY Slip Op 10134

KRONISH LIEB WEINER & HELLMAN LLP, Respondent-Appellant, v. TAHARI, LTD., Appellant-Respondent. (And a Third-Party Action.)

9946.

9947.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided December 28, 2006.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered May 26, 2005, which, inter alia, granted defendant's motion to dismiss insofar as to dismiss the causes of action for tortious interference with contract and unjust enrichment, unanimously modified, on the law, the motion denied with respect

to the cause of action for tortious interference, and that cause reinstated, and otherwise affirmed, with costs to plaintiff. Order, same court and Justice, entered January 12, 2006, which, inter alia, granted plaintiff's motion insofar as it seeks summary judgment as to liability on the trespass cause of action and summary judgment dismissing defendant's eighth through fourteenth affirmative defenses, unanimously modified, on the law, the motion granted insofar as it seeks summary judgment dismissing defendant's fifteenth through nineteenth affirmative defenses, and otherwise affirmed, with costs to plaintiff. [See 11 Misc 3d 1057(A), 2006 NY Slip Op 50264(U) (2006).]

Plaintiff had standing to commence this trespass action against defendant holdover subtenant based on its right to immediate possession of the subject office space, as determined in the prior ejectment action against defendant (13 AD3d 200 [2004]); contrary to defendant's contention, where, as here, the parties' rights to possession have already been determined, it is not necessary that plaintiff be in actual possession. Dismissal was not warranted based on the failure to join the building owner as a party, since it was not a necessary party whose rights could be inequitably affected by a judgment in the main action (see generally Matter of 27th St. Block Assn. v Dormitory Auth. of State of N.Y., 302 AD2d 155, 160 [2002]). Summary judgment was properly granted on this cause of action; a pure issue of law was involved and defendant offered no basis for its asserted belief that additional discovery would be productive of matter material and necessary to its defense against the trespass cause (see e.g. National Assn. of Sec. Dealers, Inc. v Fiero, 33 AD3d 547 [2006]).

The causation element of tortious interference was sufficiently pleaded. A cognizable claim for tortious interference does not require an allegation that the defendant's conduct was the sole proximate cause of the alleged harm. The motion court's finding that the owner's commencement of a...