Walter Silverman v Carvel Corporation

Silverman v Carvel Corp. 2004 NY Slip Op 05230 [8 AD3d 469] June 14, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2004

Walter Silverman, Appellant,
v
Carvel Corporation, Respondent.

—[*1]

In an action to recover damages for breach of a franchise agreement and tortious interference with existing and prospective business relationships, the plaintiff appeals from an order of the Supreme Court, Westchester County (Rudolph, J.), entered April 3, 2003, which granted the defendant's motion pursuant to CPLR 3211 to dismiss the complaint.

Ordered that the order is affirmed, with costs.

We affirm the order granting the defendant's motion to dismiss the complaint for reasons other than those cited by the Supreme Court. This action, asserting causes of action sounding in breach of a franchise agreement and tortious interference with existing and prospective business relationships, was commenced on June 5, 2002. The complaint alleges continuing wrongs occurring until the end of October 1999. The Supreme Court improperly determined that the action was time-barred (see Kerr v Brown, 283 AD2d 343 [2001]).

Nevertheless, we conclude that the motion to dismiss the complaint was properly granted since it fails to state a cause of action (see CPLR 3211 [a] [7]). The plaintiff, owner of a Carvel franchise, has pointed to no provision of the franchise agreement which would prohibit the distribution of Carvel products in supermarkets or convenience stores. Although the franchise [*2]agreement prohibited the opening of another Carvel store on Ridge Road within a quarter of a mile of the plaintiff's store, the plaintiff did not plead the existence of a Carvel store or for that matter, any store, selling Carvel products within that quarter-mile radius. The plaintiff's cause of action sounding in tortious interference with existing and prospective business relationships was duplicative of the plaintiff's cause of action sounding in breach of a franchise agreement and failed to assert an independent wrong (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 319-320 [1995]; Schnur v City of New York, 298 AD2d 332 [2002]). Altman, J.P., H. Miller, Goldstein and Skelos, JJ., concur.