MBF Clearing Corp. v. Shine

• Decision Date: 28 February 1995
• Citation: 212 A.D.2d 478,623 N.Y.S.2d 204
• Parties: MBF CLEARING CORP., Plaintiff-Appellant-Respondent, v. Kenneth SHINE, et al., Defendants, and William J. O'Brien, et al., Defendants-Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 204

623 N.Y.S.2d 204

212 A.D.2d 478

MBF CLEARING CORP., Plaintiff-Appellant-Respondent, v. Kenneth SHINE, et al., Defendants, and William J. O'Brien, et al., Defendants-Respondents-Appellants.

Supreme Court, Appellate Division,

First Department.

Feb. 28, 1995.

S.R. Goldberg, for plaintiff-appellant-respondent.

J.J. Phelan, III, for defendants-respondents-appellants.

Before MURPHY, P.J., and ELLERIN, KUPFERMAN, WILLIAMS and TOM, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Herman Cahn, J.), entered on or about August 26, 1993, which, inter alia, granted defendants' motion for summary judgment pursuant to CPLR § 3212 dismissing the verified amended complaint as against defendants William J. O'Brien, Bibi Baksh, Saheed Baksh, John P. Nesbitt and Denise M. Fahey ("defendants") and which denied the motion by defendant O'Brien for an award of sanctions and attorneys' fees against the plaintiff and its counsel, unanimously affirmed, without costs.

The IAS court properly awarded summary judgment in favor of the defendants dismissing the first through fourth causes of action of the amended complaint for conspiracy to breach a contract, intentional misrepresentation, conspiracy to defraud, conversion and failure to recompense for fraudulent activities as against those defendants because plaintiff failed to produce evidentiary proof, in admissible form, with respect to whether the defendants had committed any acts which breached a Customer Agreement with the plaintiff for the establishment and operation of a commodities account, sufficient to establish the existence of material issues of fact requiring a trial (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

The first cause of action of the amended complaint, alleging that the defendants had violated an alleged precondition to the Customer Agreement by conspiring to place trade orders with brokers other than one Leon Zeppel, was properly dismissed since New York does not recognize a substantive tort of conspiracy (Routsis v. Swanson, 26 A.D.2d 67, 71, 270 N.Y.S.2d 908), nor a cause of action for conspiracy to breach an agreement to which one is a party, as are the defendants herein (North Shore Bottling Co. v. C. Schmidt & Sons, 22 N.Y.2d 171, 179, 292 N.Y.S.2d 86, 239 N.E.2d 189).

The second cause of action for intentional misrepresentation was also properly dismissed since the plaintiff failed to establish that there was a misrepresentation of fact made by any of the defendants, other than defendant Kenneth Shine, prior to the execution of the Customer Agreement, which was false and known to be false, for the purpose of inducing the plaintiff to enter into the Customer Agreement (Ruse v. Inta-Boro Two-Way Radio Taxi Assocs., 166 A.D.2d 641, 561 N.Y.S.2d 70), and where the plaintiff, in alleging a cause of action based upon misrepresentation and fraud, failed to comply with CPLR § 3016(b) by...