Franklin D. Nastasi Tr. v. Bloomberg, L.P.

206 N.Y.3d 333

224 A.D.3d 804

FRANKLIN D. NASTASI TRUST, et al., appellants-respondents,

v.BLOOMBERG, L.P., respondent,Eurotech Construction Corp., et al., respondents-appellants.

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 26, 2023

February 21, 2024

Spiro Harrison & Nelson, New York, NY (David B. Harrison of counsel), for appellants-respondents.

Bracewell LLP, New York, NY (Joshua C. Klein of counsel), for respondent and respondents-appellants Javier Paulino, Marilyn Francisco, Anthony Guzzone, Dale Summerville, and Lauren Smith.

Keogh Law Group, PLLC, New York, NY (Gerard L. Keogh of counsel), for respondent-appellant Eurotech Construction Corp.

BETSY BARROS, J.P., FRANCESCA E. CONNOLLY, ROBERT J. MILLER, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract and tortious inference with contract, the plaintiffs appeal, the defendants Javier Paulino, Marilyn Francisco, Anthony Guzzone, Dale Summerville, and Lauren Smith cross-appeal, and the defendant Eurotech Construction Corp. separately cross-appeals, from an order of the Supreme Court, Nassau County (Vito M. DeStefano, J.), entered May 7, 2020. The order, insofar as appealed from, granted those branches of the motion of the defendants Bloomberg, L.P., Javier Paulino, Marilyn Francisco, Anthony Guzzone, Dale Summerville, and Lauren Smith which were pursuant to CPLR 3211(a) to dismiss the first, second, sixth, tenth, eleventh, and twelfth causes of action, and granted that branch of the motion of the defendant Eurotech Construction Corp. which was pursuant to CPLR 3211(a) to dismiss the fifth cause of action. The order, insofar as cross-appealed from by the defendants Javier Paulino, Marilyn Francisco, Anthony Guzzone, Dale Summerville, and Lauren Smith, denied those branches of the motion of the defendants Bloomberg, L.P., Javier Paulino, Marilyn Francisco, Anthony Guzzone, Dale Summerville, and Lauren Smith which were pursuant to CPLR 3211(a) to dismiss the eighth and ninth causes of action. The order, insofar as cross-appealed from by the defendant Eurotech Construction Corp., denied that branch of its motion which was pursuant to CPLR 3211(a) to dismiss the seventh cause, of action.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches, of the motion of the defendants Bloomberg, L.P., Javier Paulino, Marilyn Francisco, Anthony Guzzone, Dale Summerville, and Lauren Smith which were pursuant to CPLR 3211(a) to dismiss the eighth and ninth causes of action insofar as asserted against the defendants Dale Summerville and Lauren Smith, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the defendants Dale Summerville and Lauren Smith payable by the plaintiffs.

In January 2005, the plaintiff Nastasi & Associates, Inc. (hereinafter N & A), entered into a services agreement with the defendant Bloomberg, L.P. (hereinafter Bloomberg), for construction work to be completed at Bloomberg’s headquarters in New York City (hereinafter the 2005 agreement). Pursuant to the 2005 agreement, either party was entitled to terminate the agreement "at any time for any reason or no reason at all immediately upon written notice to the other party." On October 8, 2010, N & A and Bloomberg executed a "Statement of Work," listing the work to be performed and indicating that the statement was to be governed by the terms of the 2005 agreement. On April 23, 2015, the defendant Lauren Smith sent a letter to N & A, advising that Bloomberg was terminating the 2005 agreement and any outstanding statements of work.

The plaintiffs, commenced this action, inter alia, to recover damages for breach of contract and tortious inference with contract against Bloomberg, the defendant Eurotech Construction Corp. (hereinafter Eurotech), and Smith and the defendants Javier Paulino, Marilyn Francisco, Anthony Guzzone, and Dale Summerville (hereinafter collectively the individual defendants). The plaintiffs alleged, among other things, that the individual defendants and Bloomberg (hereinafter collectively the Bloomberg defendants) conspired with Eurotech to terminate the plaintiffs’ contract with Bloomberg and to replace the plaintiffs with. Eurotech as the provider of construction services. The plaintiffs also alleged that Bloomberg had breached the terms of a 2010 master services agreement by providing notice of Bloomberg’s termination of the 2005 agreement and any outstanding statements of work.

Thereafter, the. Bloomberg defendants and Eurotech separately moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the second amended complaint insofar as asserted against each of them. In an order entered May 7, 2020, the Supreme Court, inter alia, (1) granted those branches of the Bloomberg defendants’ motion which were to dismiss the first, second, sixth, tenth, eleventh, and twelfth causes of action, alleging, respectively, breach of contract against Bloomberg, breach of the implied covenant of good faith and fair dealing against Bloomberg, aiding and abetting tortious interference with contract. against the individual defendants, fraud against Bloomberg and Francisco, aiding and abetting fraud against Smith and Summerrille, and prima facie tort against the Bloomberg defendants; (2) denied those branches of the Bloomberg defendants’ motion which were to dismiss the eighth and ninth causes of action, alleging, respectively, tortious interference with business relationship against the individual defendants and aiding and abetting tortious interference with business relationship against the individual defendants; (3) granted that branch of Eurotech’s motion which was to dismiss the fifth cause of action, alleging tortious interference with contract against it; and (4) denied that branch of Eurotech’s motion which was to dismiss the seventh cause of action, alleging tortious interference with business relationship against it. The plaintiffs appeal, the individual defendants cross-appeal, and Eurotech separately Cross-appeals from the order.

[1, 2] "Under CPLR 8211(a)(1), a dismissal is warranted only if ‘the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law’ " (Yan Ping Xu v. Van Zwienen, 212 A.D.3d 872, 874, 188 N.Y.S.3d 475, quoting Goshen v. Mutual Life Ink. Co. of N.Y., 98 N.Y.2d 814, 826, 746 N.Y.S.2d 858, 774 N.E.2d 1190; see Leon v. Martinez, 84 N.Y.2d 88, 88, 614 N.Y.S.2d 972, 688 N.E.2d 511). The defendant bears the burden of demonstrating that the proffered documentary evidence conclusively refutes the plaintiff’s factual allegations (see Kolchins v. Evolution Mkts., Inc., 31 N.Y.3d 100, 106, 73 N.Y.S.3d 519, 96 N.E.3d 784).

[3, 4] "The essential elements of a cause of action to recover damages for breach of contract are (1) the existence of an enforceable contract, (2) the plaintiff’s performance pursuant to that contract, (3) the defendant’s breach of the contract, and (4) damages resulting from that breach" (Angeli v. Barket, 211 A.D.3d 896, 898, 180 N.Y.S.3d 564 [internal quotation marks omitted]; see Nassau Operating Co., LLC v. DeSimone, 206 A.D.3d 920, 926, 171 N.Y.S.3d 528). Here, the Bloomberg defendants submitted documentary evidence conclusively establishing that the 2005 agreement was in effect at the time of Bloomberg’s notice of termination in accordance with the terms of that agreement, which entitled Bloomberg to terminate the agreement upon written notice. Moreover, the Bloomberg defendants’ submissions utterly refuted the plaintiffs’ allega- tions that the 2005 agreement had been replaced by a 2010 agreement and that Bloomberg breached the purported 2010 agreement by providing the notice of termination (see Long Is. Med. Anesthesiology, P.C. v. Rosenberg Fortuna & Laitman, LLP, 191 A.D.3d 864, 865, 142 N.Y.S.3d 194). Accordingly, the Supreme Court properly granted that branch of the Bloomberg defendants’ motion which was to dismiss the first cause of action, alleging breach of contract against Bloomberg.

[5] Similarly, since the defendants’ submissions conclusively established that the purported 2010 agreement was not effective, the Supreme Court properly granted that branch of Eurotech’s motion which was to dismiss the fifth cause of action, alleging tortious interference with contract against it with respect to the purported 2010 agreement, and those branches of the Bloomberg defendants’ motion which were to dismiss the second and sixth causes of action, alleging, respectively, breach of the implied covenant of good faith and fair dealing against, Bloomberg with respect to the purported 2010 agreement and aiding and abetting tortious inference with contract against the individual defendants with respect to the purported 2010 agreement (see id. at 865, 142 N.Y.S.3d 194; Amalfitano v. NBTY, Inc., 128 A.D.3d 743, 744-745, 9 N.Y.S.3d 352).

[6, 7] "On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must be afforded a liberal construction, the facts therein must be accepted as true, and the plaintiff must be accorded the benefit of every possible favorable inference" (Angeli v. Barket, 211 A.D.3d at 897, 180 N.Y.S.3d 564; see Leon v. Martinez, 84 N.Y.2d at 87, 614 N.Y.S.2d 972, 638 N.E.2d 511). "Dismissal of the complaint is warranted if the plaintiff fails to assert facts in...