Paukman v Thomas

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Paukman v Thomas 2022 NY Slip Op 33489(U) October 6, 2022 Supreme Court, Kings County Docket Number: Index No. 504529/2021 Judge: Richard Velasquez 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. INDEX NO. 504569/2022 FILED: KINGS COUNTY CLERK 10/14/2022 04:22 PM NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 10/14/2022 lAS Term, Term, Part Part 66 of of the the At an IAS Supreme Court Court of of the the State State of of New Supreme New York, held held in and and for the the County County of of York, Kings, at the the Courthouse, Courthouse, at 360 Kings, Adams Street, Street, Brooklyn, Brooklyn, New Yark, Adams New York, th th of OCTOBER, OCTOBER, 2022 2022 on the 6 day of PRESENT: PRESENT: RICHARD VELASQUEZ VELASQUEZ HON. RICHARD Justice. Justice. ---------------------------------X -----------------------------------------------------------------------------)( JOSEPH PAUKMAN, PAUKMAN, JOSEPH Index No.: 504529/2021 504529/2021 Index Decision and Order Order Decision Seq. No. NO.11 Mot. Seq. Plaintiff, Plaintiff, -against-againstIRA THOMAS, THOMAS, ESQ., ESQ., IRA Defendants, Defendants, -------------X ------------------------------------------------------------------------------)( The following papers NYSCEF Doc #'s to this motion: motion: read on this Papers Notice of Motion/Order to Show Cause Affidavits (Affirmations) Annexed _ _ _ _ _ _ _ _ __ Opposing Affidavits (Affirmations)_ _ _ _ _ _ _ _ __ Reply Affidavits_ _ _ _ _ _ _ _ _ _ _ _ _ _ __ NYSCEF DOC DOC NO. 's NYSCEF 3-24 3-24 26 28 After having having come come before before the the Court Court and the Court Court having having heard heard Oral Oral Argument Argument After December 1, 2021 the the court court finds finds as follows: follows: on December Defendant moves moves for for an Order Order pursuant pursuant to Rule Rule 3211 (a)(7) (a)(7) of of the the CPLR, CPLR, Defendant dismissing plaintiffs plaintiffs action action as failing failing to state state a valid valid cause cause of of action. action. Plaintiff Plaintiff opposes opposes dismissing the same. Pursuant to CPLR CPLR 3211, 3211, the the pleading pleading is to be afforded afforded a liberal liberal construction construction (see, Pursuant CPLR 3026). 3026). We We accept accept the the facts facts as alleged alleged in the the complaint complaint as true, true, accord accord plaintiffs plaintiffs CPLR the benefit benefit of of every every possible possible favorable favorable inference, inference, and determine determine only only whether whether the the facts facts the Page 1 of of 4 Page [* 1] 1 of 4 FILED: KINGS COUNTY CLERK 10/14/2022 04:22 PM NYSCEF DOC. NO. 9 INDEX NO. 504569/2022 RECEIVED NYSCEF: 10/14/2022 as alleged fit within any cognizable Marone, 50 NY2d 481,484, 481, 484, cognizable legal theory (Marone (Morone v. v. Morone, 429 NYS2d 592, 413 NE2d 1154; Rovello Rove/lo v. Realty Co., 40 N.Y.2d 633, 634, v. Orofino Orofino Realty 389 NYS2d 314, 357 NE2d 970). "The "The criterion criterion is whether whether the the proponent of the the proponent of pleading whether he has stated stated one" one" (Guggenheimer pleading has a cause cause of of action, action, not not whether (Guggenheimer v. v. Ginzburg, 401 NYS2d 182, 372 NE2d 17; Rovello Rove/lo v. Realty Ginzburg, 43 NY2d 268, 275, 401 v. Orofino Orofino Realty Co., "[B]are legal conclusions and Co., 40 NY2d at 636, 389 NYS2d 314, 357 NE2d 970). "[Blare legal conclusions factual which are are flatly flatly contradicted contradicted by the the evidence evidence are not factual claims claims which not presumed presumed to be true Herrick, Feinstein, Feinstein, LLP, 298 AD2d 372, 751 751 true on such such a motion" motion" (Palazzolo (Palazzolo v. v. Herrick, NYS2d 401 ). If the documentary disproves an essential essential allegation allegation of the 401). documentary proof disproves 3211 (a)(7) is warranted warranted even if the allegations, complaint, dismissal dismissal pursuant pursuant to CPLR 3211 standing alone, could withstand dismiss for failure to state a cause of action withstand a motion to dismiss (see McGuire Doubleday Enters., Enters., LP, 19 AD3d 660, 661, 799 NYS2d 65). McGuire v. v. Sterling Sterling Doubleday sparingly grant a motion to dismiss dismiss for failure to state a cause Although a court should sparingly of action, where where the affidavits affidavits submitted in support support of the motion establish establish conclusively conclusively grant the motion. See Doe Doe v that the plaintiff plaintiff has no cause of action, the court should grant Ascend Charter citing Sokol Leader, 74 7 4 AD AD3d Ascend Charter Schs., Schs., 181 181 AD3d 648 [2d Dept 2020], citing Sokol v Leader, 3d at [2d Dept 201 2010], quoting Lawrence Graubard Miller, 11 11 NY3d 588, 595, 901 1182 [2d O], quoting Lawrence v Graubard 901 N.E.2d 1268, 873 NYS2d 517 [2008], quoting quoting Rovello Rove/lo v Orofino RealtyCo., 40 NY2d at Orofino RealtyCo., Rybina, 177 AD AD3d 636 [1976]. See also, Porat Porat v Rybina, 3d 632 [2d Dept 2019]. present case, plaintiff plaintiff alleges a cause of action sounding In the present sounding in tortious interference with contractual contractual relation. Tortuous Tortuous interference interference with contractual contractual relations interference Posner Co. v. Jackson, Jackson, 223 has been a viable cause of action in New York. E.g., S.C. Posner N.Y. 325, 332 (1918); Lamb v. Cheney Cheney & Son, 227 N.Y. 418,421 418, 421 (1920). It occurs occurs when Page 2 of 4 [* 2] 2 of 4 FILED: KINGS COUNTY CLERK 10/14/2022 04:22 PM NYSCEF DOC. NO. 9 INDEX NO. 504569/2022 RECEIVED NYSCEF: 10/14/2022 business or individual individual who who is not a party party to a contract contract intentionally intentionally and without without a business justifiable cause disrupts disrupts a business business relationship relationship formed formed by a contract. contract. Lama Lama Holding v. justifiable cause Holding v. Barney, 88 NY2d NY2d 413, 413, 424 424 (1996). (1996). To establish establish tortuous tortuous interference interference with a Smith Barney, contract under under New New York York law, a plaintiff plaintiff must must show show four four requisite requisite elements, elements, (1) the contract the existence of a valid valid and enforceable enforceable contract contract between between plaintiff plaintiff and another; another; (2) existence defendant's awareness awareness of of the contractual contractual relationship; relationship; (3) defendant's defendant's intentional intentional defendant's inducement of a breach breach of of the contract contract (and a subsequent subsequent breach breach by the other other caused caused inducement defendant's wrongful wrongful conduct); conduct); and (4) damages. damages. See, e.g., Nero Nero v Fiore, 3d Fiore, 165 AD AD3d by defendant's Dept 2018]; 2018]; Foster Foster v Churchill, Churchill, 87 NY2d NY2d 744, 749-50 749-50 [1996]; [1996]; Israel Wood Israel v Wood 823 [2d Dept Dolson Co., 1 NY2d NY2d 116, 120 [1956]. [1956]. See e.g., NBT NBT Bancorp FleetiNorstar Fin. Bancorp v Fleet/Norstar Dolson NY2d 614 614 [19961) [1996]) "there "there is no liability liability in tort tort with with respect respect to an unenforceable unenforceable Group, 87 NY2d contract--here a contract contract terminable terminable at the will of of either either party party unless unless the means means contract--here employed by defendant-competitor defendant-competitor were were wrongful." wrongful." Id. at 621. employed present case, case, it is undisputed undisputed that due to a falling falling out out between between Plaintiff Plaintiff and In the present that due client at the time, time, Sunny Barkats, Plaintiff Plaintiff filed a "letter "letter motion" motion" with Federal his client Sunny Barkats, with the Federal Court on August August 20, 2019 seeking to withdraw withdraw as attorney record (See (See SONY 2019 seeking attorney or record SONY Court CMECF Document Document 166, attached attached as "Exhibit "Exhibit D, 0, NYSCEF, NYSCEF, Doc 9". 9" . on August August 29,2019, CMECF 29, 2019, Plaintiffsmotion to withdraw withdraw as Barkats Barkats counsel counsel was granted by the Federal Court Court Plaintiffsmotion was granted the Federal Judge (See SONY SONY CMECF CMECF Document Document 174, attached NYSCEF Doc 12 ". attached as "Exhibit "Exhibit G, NYSCEF ". Judge withdrawal "refutes "refutes the plaintiffs plaintiffs conclusory allegations, and conclusively conclusively disposes disposes Said withdrawal conclusory allegations, plaintiffs claims claims as a matter matter of law." Nero Nero v Fiore, supra, citing Goshen Goshen v of the plaintiffs supra, at 826, citing Mutual Life Ins. Co. of of N. Y., Y., 98 NY2d NY2d 314, 326, 774 NE2d 1190, 1190, 746 746 NYS2d NYS2d 858 Mutual 774 NE2d [2002]; Held Held v Kaufman, Kaufman, 91 NY2d NY2d 425, 430-431, 430-431, 694 NE2d NE2d 430, 430, 671 NYS2d NYS2d 429 429 [2002]; [* 3] 3 of 4 Pagee 3 of of44 Pa --:::::.----------------------------------------INDEX FILED: KINGS COUNTY CLERK 10/14/2022 04:22 PM NYSCEF DOC. NO. 9 NO. 504569/2022 RECEIVED NYSCEF: 10/14/2022 [1998]). Accordingly, documentary proof establishes establishes that there was no breach of Accordingly, the documentary contract. Instead, plaintiff terminate his contract contract with his client. plaintiff took the initiative to terminate essential element element of the Thus, the action fails to state a cause of action because an essential cause is not satisfied there is no contract breach. Therefore, defendant's defendant's motion to dismiss for failure to state a cause of action is hereby granted. This matter is hereby dismissed. This constitutes the Decision/Order Decision/Order of the court. Dated: Brooklyn, New York October October 6, 2022 VELASQUEZ RD VELASQUEZ OCT Page 4 of 4 [* 4] 4 of 4

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