Vitro S.A.B. de C.V. v Aurelius Capital Mgt., L.P.

Vitro S.A.B. de C.V. v Aurelius Capital Mgt., L.P. 2012 NY Slip Op 06888 Decided on October 16, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 16, 2012
Tom, J.P., Mazzarelli, Andrias, DeGrasse, Román, JJ.
8307 650997/11

[*1]Vitro S.A.B. de C.V., Plaintiff-Appellant,

v

Aurelius Capital Management, L.P., et al., Defendants-Respondents.




Susman Godfrey L.L.P., Los Angeles, CA (Bryan J.E. Caforio
of the bar of the State of California, admitted pro hac vice, of
counsel), for appellant.
Dechert LLP, New York (Robert A. Cohen of counsel), for
respondents.

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered May 8, 2012, which, insofar as appealed from as limited by the briefs, granted defendants' motions to dismiss the complaint, unanimously affirmed, with costs.

Plaintiff, a bankrupt glass manufacturer based in Mexico, seeks to hold defendants liable for damages allegedly incurred in connection with statements published in a press release issued in advance of plaintiff's public launch of a proposed reorganization plan. The motion court properly dismissed the breach of contract claim against the non-signatory defendants because in the absence of a contract, there could be no breach (see Pevensey Press v Prentice-Hall, Inc., 161 AD2d 500, 501 [1st Dept 1990]). Plaintiff also failed to state a claim for breach of contract against the sole signatory defendant, Lord, Abbett & Co., LLC, as the press release merely evaluated plaintiff's proposed plan, a permitted use of confidential material, and did not disclose any specific confidential terms. Moreover, this expression of opinion is constitutionally protected and cannot serve as the basis for plaintiff's injurious falsehood claim (see Kidd v Epstein, 79 AD3d 650 [1st Dept 2010]).

In the absence of any tortious conduct, the element of "wrongful means," necessary to support a claim for tortious interference with prospective economic advantage, is lacking (see NBT Bancorp v Fleet/Norstar Fin. Group, 87 NY2d 614 [1996]; Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183 [1980]). Plaintiff also failed to establish malice as the sole motive for defendants' actions. As creditors, defendants have a clear economic interest in this matter, separate from any possible malicious motive (see Advanced Global Tech., LLC v Sirius Satellite Radio, Inc., 44 AD3d 317 [1st Dept 2007]).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 16, 2012

CLERK