Forlenza v Thibodeau

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Forlenza v Thibodeau 2018 NY Slip Op 31698(U) March 23, 2018 Supreme Court, New York County Docket Number: 653212/15 Judge: Debra A. James 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: NEW YORK COUNTY CLERK 03/27/2018 02:37 PM 1] INDEX NO. 653212/2015 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 03/27/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 59 ----------------------------------------x LOUISE C. FORLENZA, Plaintiff, Index No. 653212/15 -againstMARC THIBODEAU, Defendant. ----------------------------------------x Plaintiff Louise C. Forlenza (''Forlenza") moves, pursuant to CPLR 3025(b), for an order granting leave to amend the complaint to withdraw her cause of action for negligence and to assert causes of action for tortious interference with business relations and for prima f acie tort.. to CPLR 3211 .(a) Defendant Marc THIBODEAU cross-moves, pursuant (1), (4) and (7), for an order dismissing the complaint. CONCLUSION The motion shall be granted as to the first cause of action and denied as to the second cause of action and the cross motion shall be denied. BACKGROUND In this action, Forlenza seeks damages in negligence against defendant Thibodeau, in connection with an unsuccessful effort to fund a Broadway musical called Rebecca. According to the complaint, Forlenza is the principal of a business operating under the name Louise Forlenza Productions, Inc. 2 of 8 [*FILED: NEW YORK COUNTY CLERK 03/27/2018 02:37 PM 2] INDEX NO. 653212/2015 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 03/27/2018 (LFP) which is engaged in the production of theatrical shows. In Sprecher 2012, LFP and another production enterprise Organization, Forlenza Productions, LLC, Inc. formed an entity 1 called The named Sprecher SFP is the general partner of (SFP). Rebecca Broadway LP (RBLP) a limited partnership organized for the purpose of mounting the production of a musical theater show on Broadway called "Rebecca'' (Rebecca) . In May of that year, RBLP hired defendant Thibodeau to act as the press representative for Rebecca. The complaint alleges investors for Rebecca. that RBLP had difficulty obtaining However, in September, 2012, it located an investor to help fund the project. One condition of the investor's participation was that it retain its anonymity. The complaint alleges that, in that same month, Thibodeau, who knew the identity of such investor, sent four anonymous emails to the investor, which made several negative allegations about the producers and the show's prospects, and encouraged the potential See Rebecca Broadway Ltd. investor not to back the production. Partnership emails, v Hotton, 143 AD3d at 73. After receiving these the investor withdrew its involvement and the production never went forward. The facts of this case have been set forth in detail in a decision by the Appellate Division, First Department in a related action titled Rebecca Broadway Ltd. Partnership v Hotton (143 AD3d 71 [1st Dept 2016]). 1 Page 2 of 3 of 8 7 [*FILED: NEW YORK COUNTY CLERK 03/27/2018 02:37 PM 3] INDEX NO. 653212/2015 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 03/27/2018 In October 2012, RBLP and SFP commenced an action in this court against several entities, to which Thibodeau was eventually added as a defendant. See Rebecca Broadway Ltd. v Hotton, NY County, index No. 653659/12 (RBLP action). Sup Ct In May, 2017, a jury awarded RBLP $90,000 in total damages against Thibodeau, for breach of contract and interference with business relations. In the meantime, See id. in September, 2014, Bennett Sprecher comm enced an action in the court against Thibodeau for, among other things, tortious interference with business relations. See Sprecher v Thibodeau, Sup Ct NY County, acion) . The Thibodeau, Sprecher 148 AD3d 654 Index No. . . action is [1st Dept. 158846/14 ongoing, 2017]), and ("the Sprecher . in Sprecher v the Appellate Division affirmed the dismissal of the negligence claim and the upholding of the tortious interference with business relations claim on the part of Sprecher, finding that the latter was not duplicative of the same claim in the RBLP action. For lenza commenced the instant asserting a claim for negligence. action in September, 2015, Forlenza now seeks to withdraw the cause of action for negligence and to assert causes of action for tortious f acie tort. interference with business relations and for prima Thibodeau opposes the motion dismiss the complaint. Page 3 of 4 of 8 7 and cross-moves to [*FILED: NEW YORK COUNTY CLERK 03/27/2018 02:37 PM 4] INDEX NO. 653212/2015 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 03/27/2018 DISCUSSION Motion to Amend "Leave to amend a complaint is typically freely granted, but is cornrni tted, however, to the sound discretion of the trial court." Velarde v City of New York, (citations omitted). 149 AD3d 457, "To obtain leave, 457 (1st Dept 2017) a plaintiff must submit evidentiary proof of the kind that would be admissible on a motion for summary judgment." Id. (citations omitted). The first cause of action in the proposed amended complaint is for tortious interference with business relations. "To set forth a cause of action sounding in tortious interference with business relations, a plaintiff is required to plead that the defendant interfered with the plaintiff's business relationships either with the sole purpose of harming the plaintiff or by means that were unlawful or improper." AD3d 1102, 1106 (2d Tri-Star Lighting Corp. v Goldstein, Dept 2017), internal quotation marks 151 and citation omitted. Defendant argues that the motion to amend should be denied because the cause of action for tortious interference is already being litigated in the RBLP action. However, it is undisputed that Forlenza is not a party to that action. and as in the Sprecher action, there is not "substantial" identity of parties . as set forth above, Moreover, subsequent to the submission of the instant motion and cross motion, the RBLP action concluded with a Page 4 of 5 of 8 7 jury [*FILED: NEW YORK COUNTY CLERK 03/27/2018 02:37 PM 5] INDEX NO. 653212/2015 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 03/27/2018 The parties here have not briefed or verdict against Thibodeau. argued what effect, if any, such verdict would have on the instant action. As such, defendant has not demonstrated that plaintiff's motion to assert such a claim should be denied. Plaintiff's proposed second cause of action is for prima facie "The tort. elements infliction of harm, any excuse or ( 2) of justification, omitted. Inc., 153 f acie tort are intentional ( 1) resulting in special damages, lawful." Ahmed Elkoulily, Healthplan, • pr1ma ( 4) M.D., AD3d by P.C. 768, an v 772 act or ( 3) with out acts otherwise New York State Catholic (2d Dept 2017), citation "To adequately plead prima f acie tort, the complaint must plead the defendant's malicious intent or disinterested malevolence as the sole motive for the challenged conduct." Id. Here, the proposed amended complaint fails to plead sufficient facts to plaintiff state a fails cause of action both to allege for that prima facie tort defendant's in that conduct was motivated solely by malice or disinterested malevolence and the existence of special damages. Cross Motion to Dismiss Defendant However, in cross-moves light of the to dismiss the original granting of the motion to complaint. amend, the amended complaint will become the operative pleading in this action and moot. defendant's cross motion to dismiss the original complaint is See, Gay v Farella, 5 AD3d 540, 541 Page 5 of 6 of 8 7 (2d Dept 2004). [*FILED: NEW YORK COUNTY CLERK 03/27/2018 02:37 PM 6] INDEX NO. 653212/2015 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 03/27/2018 ORDER Accordingly, it is ORDERED that the motion of plaintiff Louise Forlenza to amend the complaint is granted with respect to the first cause of action in the proposed amended complaint; and it is further ORDERED that the motion to amend the complaint is denied with respect to the second cause of action in the proposed amended complaint; and it is further ORDERED that the motion to amend the complaint to withdraw the cause of action for negligence is granted; and it is further ORDERED that plaintiff shall serve the amended complaint within twenty days of service of a copy of this order with notice of entry; and it is further ORDERED that the cross-motion to dismiss the complaint by defendant Marc Thibodeau is denied; and it is further ORDERED that within 20 days of service of a copy of this order and the amended complaint, defendant shall serve accordance with CPLR 3025(d); and it is further Page 6 of 7 of 8 7 an answer in I [*FILED: NEW YORK COUNTY CLERK 03/27/2018 02:37 PM 7] INDEX NO. 653212/2015 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 03/27/2018 ORDERED that counsel are directed to appear for a preliminary conference in IAS Part 59, 2018, 60 Centre Street, Room 331, on May 1, 9:30 AM. This is the decision and order of the court. ENTER: DATED: March 23, 2018 f ,c .bJ.. a ,A >.aM... J.S.C. DEBRA A. JAMES Page 7 of 8 of 8 7 (;.""

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