85 A.D.2d 713 | N.Y. App. Div. | 1981
Lead Opinion
In an action to recover damages for fraudulent, false and conspiratorial conduct, defendants Duff and Barrett appeal from an order of the Supreme Court, Nassau County (Burstein, J.), entered April 8,1981, which granted plaintiffs’ motion for leave to serve an amended complaint and denied their motion to dismiss the complaint. Order modified, on the law, by adding to
Concurrence Opinion
concurs insofar as the majority has upheld the granting of plaintiffs’ motion to serve an amended complaint, and has granted the motion to dismiss as to plaintiffs Jones and Rappaport, but otherwise dissents and votes to also dismiss the complaint of Tiffany Promotions, Inc. (Tiffany), with the following memorandum: In my view, Special Term’s determination of appellants’ motion to dismiss the complaint as to Tiffany was incorrect. For the purpose of appellants’ motion pursuant to CPLR 3211 (subd [a], par 7), plaintiffs’ allegations are accepted as true and viewed in a light most favorable to plaintiffs (see Rovello v Orofino Realty Co., 40 NY2d 633, 634). The amended complaint is deemed to allege whatever can be implied from its statements (see Cohn v Lionel Corp., 21 NY2d 559, 563; Kober v Kober, 16 NY2d 191,193). The focus of the question presented on such a motion is whether the requisite allegations of any valid cause of action can be gathered from all the averments (see Guggenheimer v Ginzburg, 43 NY2d 268, 272; Rovello v Orofino Realty Co., supra, p 634; Foley v D’Agostino, 21 AD2d 60, 65). The amended complaint, in the instant case, fails to allege facts sufficient to sustain a cause of action based on either fraud and deceit, unlawful interference with precontractual rights, unfair competition or prima facie tort. A cause of action based upon fraud requires misrepresentation of a fact, intended to deceive the other party, which causes reliance to one’s detriment by that other party on such misrepresentation (see Lanzi v Brooks, 54 AD2d 1057, affd 43 NY2d 778; Jo Ann Homes at Bellmore v Dworetz, 25 NY2d 112; Reno v Bull, 226 NY 546). The bids in question were sealed. Accordingly, Tiffany could not have relied to its detriment on facts in appellants’ bid of which it had no knowledge. The pleading fails to state facts sufficient to sustain causes of action for unfair competition or unlawful interference in precontractual negotiations. Special Term correctly noted that the amendment cured the complaint to the extent that plaintiff Tiffany now states that it and not a third party (Sam Glass) would have received the promotion rights to the championship fight but for the alleged fraudulent and deceitful acts of defendants (see Union Car Adv. Co. v Collier, 263 NY 386, 401; Susskind v Ipco Hosp. Supply Corp., 49 AD2d 915). The complaint, however, fails to allege a malicious or unlawful intent on the part of defendants. “Not until false, fraudulent and malicious methods are used to kill off a competitor does the law take notice” (Union Car Adv. Co. v Collier, supra, p 396). The alleged agreement between the defendants Duff and Barrett and defendant Watt for a lower share of the purse may have been in violation of the World Boxing Council rules, but was not unlawful. Nor are the acts malicious or motivated by a desire to damage the plaintiffs. Consequently, a cause of action for unfair competition or unlawful interference will not lie (see Williamson, Picket, Gross v 400 Park Ave. Co., 63 AD2d 880, affd 47 NY2d 769; Susskind v Ipco Hosp. Supply Corp., supra; Benton v Kennedy-Van Saun Mfg. & Eng. Corp., 2 AD2d 27). Plaintiffs fail also to state a cause of action in prima facie tort. “ ‘The key to the prima facie tort is the infliction of intentional harm, resulting in damage, without excuse or justification, by an act or series of acts which would otherwise be lawful’ ” (Spivak v Delma Studios, 15 Misc 2d 760, 761, citing Ruza v Ruza, 286 App Div 767, 769). Conduct which might constitute prima facie tort if done solely to injure a plaintiff, may be justified on the ground of the defendant’s economic self-interest which negates a finding of individual malice toward the plaintiff (Williamson, Picket, Gross v