Wadiak v. Pond Mgmt., LLC

• Decision Date: 11 December 2012
• Citation: 101 A.D.3d 474,955 N.Y.S.2d 51,2012 N.Y. Slip Op. 08463
• Parties: Matthew J. WADIAK, Plaintiff–Respondent, v. POND MANAGEMENT, LLC, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 474

955 N.Y.S.2d 51

2012 N.Y. Slip Op. 08463

Matthew J. WADIAK, Plaintiff–Respondent,

v.POND MANAGEMENT, LLC, et al., Defendants–Appellants.

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

Dec. 11, 2012.

Stillman & Friedman, P.C., New York (Scott M. Himes of counsel), for appellants.

Goodstadt Law Group, PLLC, Carle Place (Andrew S. Goodstadt of counsel), for respondent.

ANDRIAS, J.P., FRIEDMAN, DeGRASSE, MANZANET–DANIELS, GISCHE, JJ.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered June 11, 2012, which, insofar as appealed from as limited by the briefs, denied defendants' motion, made pursuant to CPLR 3211, to dismiss plaintiff's claims for defamation and slander per se, tortious interference with prospective business advantage/relations, and intentional infliction of emotional distress, unanimously affirmed, with costs.

We reject defendants' argument, that the IAS Court improvidently exercised its discretion, by refusing, at oral argument, to convert that branch of their motion to dismiss plaintiff's defamation claim to a motion for summary judgment. We also decline to exercise our own discretion to so convert the motion since the record does not establish that the parties “deliberately chart [ed] a summary judgment course” ( Elsky v. Hearst Corp., 232 A.D.2d 310, 648 N.Y.S.2d 592 [1st Dept.1996] [internal quotation marks omitted]; see Nonnon v. City of New York, 9 N.Y.3d 825, 826, 842 N.Y.S.2d 756, 874 N.E.2d 720 [2007];Four Seasons Hotels v. Vinnik, 127 A.D.2d 310, 320, 515 N.Y.S.2d 1 [1st Dept.1987] ). Plaintiff's counsel's objection at oral argument to converting defendants' motion is a significant indication that the parties were not charting such a course ( see Four Seasons, 127 A.D.2d at 321, 515 N.Y.S.2d 1).

Giving the complaint the benefit of every favorable inference, we find that the complaint states a cause of action for tortious interference with prospective contractual relations ( see e.g. Posner v. Lewis, 18 N.Y.3d 566, 570 n. 2, 942 N.Y.S.2d 447, 965 N.E.2d 949 [2012] ).

In light of the above, defendants' argument that the cause of action for intentional infliction of emotional distress should be dismissed if the defamation and tortious interference claims are dismissed, fails.