New York Packaging Corp. v Southeastern Paper Group

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New York Packaging Corp. v Southeastern Paper Group 2015 NY Slip Op 32786(U) December 4, 2015 Supreme Court, Nassau County Docket Number: 601704-15 Judge: Timothy S. Driscoll Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NASSAU COUNTY CLERK 12/14/2015 03:49 PM 1] NYSCEF DOC. NO. 48 INDEX NO. 601704/2015 RECEIVED NYSCEF: 12/14/2015 ii SUPREME COURT-STATE OF NEW YORK ·ii SHORT FORM ORDER ' Present: HON. TIMOTHY S. DRISCOLL Justice Supreme Court -------------------------------------------------------------------x NEW YORK PACKAGING CORP., I TRIAL/IAS PART: 14 NASSAU COUNTY · Plaintiff, -against- Index No: 601704-15.' Motion Seq. No. 2 Submission Date: 10/20/15 SOUTHEASTERN PAPER GROUP, . 'i Defendant.· -------------------------------------------------.------------------x Papers Read on this Motion: Notice of Motion. Affirmation in S*pport and Exhibits ...................... x , Memorandum of Law in Support..J ....................................................... x Affirmation in Opposition and, Exhibits ...................................... ;.........,x Reply Affirmation and Exhibif....... :i••••••••••••••••••••••••••••••••••••••••••••••••••••••• x ' This matter is before the court on the!motion by Defendant Southeastern Paper Group Ii · ("SE Paper" or "Defendant") filed on October 19, 2015 and submitted on October 20, 2015. For ;i the reasons set forth below, the Court denies!the motion. BACKGROUND A. Relief Sought Defendant moves ,' f~H • . i ' an Order, pursuant to CPLR § 2221, granting leave t() reargue the '1 ·I •· I Court's prior decision ("Prior Decision") dated September 9, 2015 (Ex. 3 to Fogel Aff. in Supp.) . !i to the extent that the Prior Decision did not dismiss the first cause of action in the Complaint for i tortious interference with contract for failure; to state a cause of action pursuant to CP~R § 321 l(a)(7) and, upon reargument, modifying the Prior Decision to the extent of dismissing the first cause of action. 1 Plaintiff New York Packaging Corp. ("NYP" or "Plaintiff'') opposes the motion. 1 [* 2] B. The Parties' History i~ dethil in the Prior Decision and the Court incorporates •' 'I , . the Prior Decision by reference as if set fort~ in full herein. As noted in the Prior De~ision, the The parties' history is outlined Complaint (Ex. 1 to Fogel Aff. in Supp.) alleges as follows: ~ : .' ·: ' q i· Plaintiff is a Nassau County-bas~d distributor of plastic bags nationwide. In March of 2006, Plaintiff established a relationship, with Food Depot which, in tum, contracted with Fulton Paper. Pursuant to the agreement, Fulton Paper would purchase plastic bags from Plaintiff based • ij . on instructions from Food Depot. Fulton Paper interacted with Plaintiff in the context of this ,, II arrangement. To meet Food Depot's needs, Plaintiff invested approximately $100,000 for :1 ' . racking and shipping to all Foot Depot stores. In or about January 2008, Defendant assumed the role previously held by Fulton Paper in connection with meeting the distribution needs of Food Depot and Food Depot directed Defendant tq interact with Plaintiff regarding Food Depot's needs. In 2014, Plaintiff and Defendanthad'~ unrelated dispute regarding Defendant's alleged non-payment of product manufactured by Plaintiff for Defendant. Notwithstanding that dispute, . :1 Defendant continued to act for and on behalf of Plaintiff in connection with Food Depot's needs. On or about March 11, 2015, Plaintiff r~ceiv~d an email from Defendant which advised Plaintiff that Food Depot would be discontinuing its ~elationship with Plaintiff regarding the ~anufacture and distribution of plastic bags, and would be returning plastic bag racks already distributed by , ii !I ., Plaintiff for Food Depot. In response, Plaint,iff contacted Food Depot which advised Plaintiff that Defendant, while still representing Plaintiffs products at Food Depot, "tortuously interfered with the relationship between plaintiff and Food Depot in order to supplant the plaintiff in that . 'I role" (Comp. at ii 13). When Plaintiffs prinbipal contacted Defendant, Defendant's s~les representative advised Plaintiff that it was B&n Miller, Defendant's vice president, who "was ·1 i: directly responsible for orc:~estrating su9,h torious conduct" (Comp. at ii 1:4). Plaintiff alleges that Defendant's conduct caused Plaintiff to lose a valuable business relationship and suffer substantial damages. As noted in the Prior Decision, the Cbmplaint contains four (4) causes of action: : ii 1) tortious interference with contract, 2) breach of fiduciary duty by Defendant in inducing Food i Depot to terminate its i relat~onship with rlai~tiff which resulted in Defend.~nt assuming Plaintiffs role for itself; 3) unfair busin~ss p~actice and unfair competition by Defendant which allegedly used information provided by Plaintiff to harm Plaintiff, and 4) fraud by Defendant 2 [* 3] ~ '. which, in an effort to deceive Plaintiff irito Bblieving that Defendant would promote Plaintiff's '~ ] best interests regarding the Food Depot accohnt, misrepresented to Plaintiff in 2014 that !! . Defendant, notwithstanding the parties' dispute, would continue to promote Plaintiff's best :~ interests. In the Prior , . Decisi~n, the Court granted Defendant's prior motion ("Prior Motion") to dismiss the Complaint to the extent that:the Court dismissed the second, third and foUrth causes of action but denied Defendant's Prior Motion to dismiss the first cause of action. The Court denied the Prior Motion to dismiss the first cause of action based on the Court's conclusion that, '1 i . , according Plaintiff the benefit of every possiple favorable inference, Plaintiff had sufficiently pleaded this cause of action by alleging the existence of a contractual relationship between Plaintiff and Food Depot, alleging that Defendant communicated with Food Depot which led to Food Depot terminating its. relationship with'!Plaintiff, and alleging that Defendant acted out of !I ,' ~etween Plaintiff and Defendant. The first cause of action (Comp. at iii! 16-21) alleges that 1) at all relevant times, malice stemming from an Jnrelated dispµte Defendant knew of the existence of a valid, subsisting and long time relationship between ,! I Plaintiff and Food Depot; 2) with knowledg~: of the existence of such valid contract, ~efendant undertook to and did undermine that co~trad by inducing Food Depot to cease its rel~tionship ' with Plaintiff; 3) Defendant not only undermined and tortiously interfered with the contract between Plaintiff and Food Depot, but "managed to assume the role" (Comp. at if 18) previously i held by Plaintiff as it related to producti9n fdr Food Depot; 4) but for the actions taken by •J , ,. Defendant, the relationship between Plai,ntiff and Food Depot would still be ongoing; 5) the conduct engaged in by Defendant constitutes tortious interference with contract; and 6) by reason of the foregoing, Plaintiff is entitled to a money judgment against Defendant in. an amount to be proven at trial. C. The Parties' Positions Defendant submits that the Court. ovetJooked and/or misapprehended relevant facts or ii law by denying the Prior Motion to dismiss the first cause of action in light of Plaintiff's failure •' ' I I to allege that Food Depot did not have the right to terminate the alleged relationship with ., Plaintiff and that, by doing so, Food Depot breached a contract with Plaintiff. Defendant contends that, because there is no allegation that Food Depot breached the alleged contract with Plaintiff by terminating it, the claim for tortidus interference with contract does not allege all of the required elements and should be dismissed. 3 [* 4] ; Plaintiff opposes the motion submitting that Plaintiff has pleaded a viable claim for -~ ; !i ! tortious interference with contract by alleging that 1) Defendant had knowledge of the existence I . of the contract between Plaintiff and Food D1~pot; 2) Defendant procured a breach of that contract so that Plaintiff nci longer had the Fbod Depot account because Defendant diverted that account to itself, at the expense of Plaintiff, ~ll causing substantial damage to Plaintif~; and 3) but for the interference by Defendant,' Pla~ntiff would still have the account in its roster of customers. Plaintiff submits that Defendant riade the same argument to the Court in ~ts Prior Motion, and that Defendant has not demonsttated that the Court overlooked any controlling '1 • principle of law or misapprehended any mat~rial facts in denying the Prior Motion to dismiss the ., 1! . first cause of action. Plaintiff also submits that it was improper for Defendant to submit the •~ i I ·' ·' affidavit of Kenneth Love in support of its Prior Motion. In reply, Defendant submits that Plai4tiff s opposition fails to address the alleged defect in its first cause of action, specifically Plaintfrf s failure to include the required allegation that Defendant procured Food Depot to breach a contract with Plaintiff. Defendant also contends that the submission of Kenneth Love's affid~vit in support of the Prior Motion was appropriate. RULING OF THE COURT A motion for leave to reargue shall be based upon matters of fact or law allegedly I ,. I! ·' overlooked or misapprehended by the court in determining the prior motion, but shall not include :1 any matters of fact not offered on the prior motion. Matter ofAmerican Alternative Insurance " 11 • ! Corp. v. Pelszynski, 85 A.D.3d 1157, 1158 (2d Dept. 2011), Iv. app. den., 18 N.Y.3d 803 (2012), quoting CPLR § 2221(d)(2). A.motion for le~ve to reargue is not designed to provide an unsuccessful party with successive opportunilies to reargue issues previously decided, or to present arguments different from those originally presented. Mazinov v. Rella, 79 A.D.3d 979, I i ' 980 (2d Dept. 2010), quoting McGill v. Gold~an, 261A.D.2d593, 594 (2d Dept. 1999). The Court denies the motion based ori the Court's conclusion that Defendant h~s not ,I !) demonstrated that the Court overlooked or m~sapprehended matters of fact or law in determining " I' lj I the Prior Motion. The Court reaffirms its coriclusion, as set forth in the Prior Decision, that ii Plaintiff has alleged a viable cause of action for tortious interference with contract. 4 [* 5] All matters not decided herein are hereby denied. 'I This constitutes the decision andiorder of the Court. The Court reminds counsel for the parties of their required appearance before the Court I . I'1 for a Compliance Conference on February 2, 2016 at 9:30 a.m. DATED: Mineola, NY December 4, 2015 HON. TIMOTHY S. D J.S.C. ENTERED DEC 1 4 2015 NASSAU COUNTY COUNTY CLERK'S OFFICE 5

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