MHSP, Inc. v Semenchuk
Annotate this CaseDecided on December 13, 2004
Supreme Court, Kings County
MHSP, INC.,, Plaintiff,
against
Elizabeth Semenchuk, Defendant.
2005/04
David I. Schmidt, J.
Upon the foregoing papers, the motion by defendant Elizabeth Semenchuk (Semenchuk) for an order, among other things, dismissing the complaint herein pursuant to CPLR 3211 (a) (8) is granted.
Plaintiff MHSP, Inc. (MHSP), a New York corporation, provides psychological services to kidney dialysis centers. Semenchuk, a licensed psychologist, is a resident of Ohio. On or about September 11, 2002, plaintiff and defendant entered into a written agreement pursuant to which MHSP retained Semenchuk as an independent contractor to provide psychotherapy to health-related agencies on plaintiff's behalf. In September 2002, defendant began providing psychological services at an Ohio facility known as the Farnsworth Dialysis Center, which was owned by the Renal Care Group (RCG). According to plaintiff's complaint, on August 17, 2003, when the Farnsworth Dialysis Center was closed, "defendant was discovered outside the building attempting to enter without authorization" and set off the Center's alarms in doing so. It is further alleged that in [*2]August 2003, after defendant was allegedly discovered in an employee's office within the Farnsworth Dialysis Center without authorization, RCG informed plaintiff that it was terminating its business relationship with MHSP as a result of these incidents. Because defendant "breached and repudiated her implied and actual ethical obligations under the contract" by "intentionally and recklessly committ[ing] the acts alleged in this complaint", plaintiff seeks money damages based upon defendant's interference with its business relationship with RCG.
In her motion, Semenchuk asserts that this court lacks personal jurisdiction over her since she never conducted any business within New York and the contract was negotiated, executed and performed in Ohio. Although the contract contains a forum selection clause which provides that any dispute between the parties should be litigated in New York, defendant argues that the clause should not be applied in this case because plaintiff's claims either sound in tort or allege a breach of an "implied covenant" of good faith and fair dealing, as opposed to a breach of an express term of the agreement. Further, because defendant's alleged conduct - - - the attempted trespass and larceny and the making of disparaging remarks about MHSP- - - had no relationship to the express terms of the contract, defendant contends that the complaint fails to state a cognizable cause of action. Moreover, defendant maintains that plaintiff's claims of an interference with a prospective business advantage should be dismissed because plaintiff has not alleged that defendant knew of the contract with RCG or that her conduct was designed to intentionally procure a breach of that contract. Should the court find that it has jurisdiction over defendant and that plaintiff has stated cognizable claims, defendant asserts that this action should be dismissed on forum non conveniens grounds since the events alleged herein occurred in Ohio, defendant resides there, and the contract was performed in Ohio.
In opposition to the motion, plaintiff states that no one traveled to Ohio on its behalf to negotiate or execute the subject contract; rather, "all negotiations were done between the parties by telephone, facsimile and mail" and the contract was drafted in New York, defendant was assigned to the Farnsworth Dialysis Center from New York and defendant's payments were sent from New York. Plaintiff relies upon the forum selection clause of the contract and argues that its claims, such as the implied duty of good faith and fair dealing, arise out of the contract. Plaintiff also points out that an Ohio court considered the applicability of the forum selection clause in a prior action between the parties and found that the Ohio courts lacked jurisdiction. MHSP argues that the complaint herein states a cause of action for breach of contract, given defendant's breach of her implied duty of good faith by engaging in activities that a reasonable person would understand to be prohibited by the contract.
In reply, defendant points out that plaintiff has improperly relied upon an attorney's affirmation to buttress its position that there were contacts by defendant with New York - - - negotiations by telephone, facsimile and mail. Defendant further asserts that the forum selection clause refers to disputes "pursuant to this agreement" and that plaintiff's allegations [*3]"do not concern a dispute that arises pursuant to the Agreement." With respect to the ruling of the Ohio court regarding the nature of the forum selection clause, defendant explains that the prior action in Ohio concerned Semenchuk's claims for lost wages and that "the amount of wages defendant is entitled to . . . is specified by the express terms of the agreement itself."
The elements of a cause of action for tortious interference with contractual relations are the existence of a valid contract and damages caused by the wrongdoer's knowledge of and intentional interference with that contract without reasonable justification (see Stiso v Inserra Supermarkets, 179 AD2d 878 [1992], Iv. denied 80 NY2d 757 [1992]). Here, even liberally construing the pleading in the light most favorable to MHSP and accepting all factual allegations as true (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]), plaintiff's claims of tortious interference with contract fail to state a cause of action because there is no indication that the alleged acts of interference - - - attempted burglary and attempted larceny - - - were prompted solely by malice or ill will (see Wolf v National Council of Young Israel, 264 AD2d 416 [1999]).
In order to recover damages for tortious interference with prospective business relations (or, in this case, with prospective economic advantage), a plaintiff must demonstrate both wrongful means and that the wrongful acts were the proximate cause of the rejection of the plaintiff's proposed contractual relations (see Pacheco v United Medical Associates, P.C., 305 AD2d 711 [2003]). "Wrongful means" include physical violence, fraud or misrepresentation, civil suits and criminal prosecutions and some degrees of economic pressure" (Guard-Life Corp. v S. Parker Hardware Mfg. Corp., 50 NY2d 183, 191 [1980]). In this case, while Semenchuk's actions in and about the premises of the Farnsworth Dialysis Center may have been inappropriate, there is no evidence of, nor even an allegation that her conduct was of a malicious and wrongful nature so as to constitute a predicate for a claim of tortious interference with prospective economic advantage. Plaintiff's claims therefor are likewise dismissed.
Within every contract is an implied covenant of good faith and fair dealing (see Rowe v Great Atlantic & Pacific Tea. Co., 46 NY2d 62 [1978]). This covenant is breached when a party to a contract acts in a manner that, although not expressly forbidden by any contractual provision, would deprive the other party of the right to receive the benefits under their agreement (see Jaffe v Paramount Communications, 222 AD2d 17, 22-23 [1996]). For a complaint to state a cause of action alleging breach of an implied covenant of good faith and fair dealing, the plaintiff must allege facts which tend to show that the defendant sought to prevent performance of the contract or to withhold its benefits from the plaintiff (see Dvoskin v Prinz, 205 AD2d 661, 662 [1994]). Even a liberal reading of the complaint shows that it fails to state a cause of action alleging breach of an implied covenant of good faith and fair dealing. Plaintiff does not allege that defendant's conduct prevented it from obtaining any specific benefit that it was entitled to receive from defendant under the contract. As such, these claims are dismissed. [*4]
In light of such relief, that branch of the motion which seeks dismissal of the complaint on jurisdictional grounds or on the ground that this court is an inconvenient forum need not be addressed.
The foregoing constitutes the decision, order and judgment of this court.
E N T E R,
J. S. C.
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