CHARLES MONTANO, Appellant, v CITY OF WATERVLIET et al., Respondents, et al., Defendants.
Appellate Division of the Supreme Court of New York, Third Department
January 24, 2008
850 N.Y.S.2d 273
CHARLES MONTANO, Appellant, v CITY OF WATERVLIET et al., Respondents, et al., Defendants. [850 NYS2d 273]
Spain, J. Appeal from an order of the Supreme Court (McCarthy, J.), entered October 16, 2006 in Albany County, which granted a motion by defendants City of Watervliet, City of Watervliet Board of Appeals and Mark R. Gilchrist for summary
Plаintiff is the owner of a large commercial building located in the City of Watervliet, Albany County, in a manufacturing zone. In early 2000, defendant Starfire Systems, Inc., a business engaged in the manufacturing of ceramiс and ceramic composites,
Thereafter, plaintiff purchased the property, made extensive improvements, and enterеd into a five-year lease with Starfire, contingent upon Starfire obtaining necessary governmental approval and giving both parties the right to terminate the lease if such approvаl were not timely obtained. As later amended, the rent commencement date under the lease was January 2001. Starfire paid a security deposit and a few monthly lease payments, but never occupied the building and instead continued to pursue alternative sites with Bradley’s assistance, ultimately determining that this site was not feasible.
In April 2001, Bradley and Starfire’s staff arranged a meeting with city officials, including defendant Mark R. Gilchrist, the City’s zoning officer and fire inspector, and an emergency response team leader and an engineer. Bradley, who had from the outset viewed the subjeсt property as unsuitable for Starfire’s business, presented more detailed information regarding the scope of Starfire’s intended use of chemicals and the dangers of hypothetical chemical spills and fires, and other “worst case scenarios” were considered with regard to the nearby residential neighborhood. Thereafter, Gilchrist sent Starfire a letter dated May 10, 2001 indicating that the preconstruction planning meeting with Bradley and others had brought to the City’s attention “the exact nature of the proposed occupancy [and] [d]ue to health, safety and welfare issues for the residents living in the area around [the subject building], the Building Department will not issue a permit for renovations. Even with all the proposed safeguards and planning, an accident at this sitе could very well be disastrous to the resident population.” Notably, there was no pending permit or certificate of occupancy application;
Plaintiff commenced this action and filed an amended verified complaint alleging, as relevant to this appeal, various claims against the City, the Board and Gilchrist (hereinafter collectively refеrred to as the city defendants), for tortious interference with its contract, as well as violations of plaintiff’s constitutional rights, illegal spot zoning, and diminution in its property value. Supreme Court grantеd the city defendants’ motion for summary judgment dismissing the complaint against them. Plaintiff reportedly settled all claims—including breach of contract, fraud and tortious interference—against defendants Stаrfire, Sherwood, Brunswick Research and Bradley, which are not before us.
On plaintiff’s appeal, we affirm Supreme Court’s award of summary judgment to the city defendants largely for the reasons statеd in the court’s written decision. With regard to plaintiff’s claim of tortious interference against the City and Gilchrist, under settled law, this cause of action sounds in tort (see Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 281 [1978]). As against the City, this claim is subject to notiсe of claim requirements (see
Plaintiff’s tortious interference claim against Gilchrist was properly dismissed because, even viewing the evidence most favorably to plaintiff, the nonmoving party, and giving him the benefit of every favorable inference (see Gadani v Dormitory Auth. of State of N.Y., 43 AD3d 1218, 1219 [2007]), there is no reasonable view of the evidence that Gilchrist intentionally and unjustifiably—as opposed to merely negligently—рrocured the breach of the plaintiff-Starfire lease (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 424-425 [1996]; Harris v Town of Fort Ann, 35 AD3d 928, 929 [2006]; Bradbury v Cope-Schwarz, 20 AD3d 657, 659-660 [2005]), i.e., that Gilchrist’s conduct was “solely malicious” (Rosario-Suarz v Wormuth Bros. Foundry, 233 AD2d 575, 577 [1996] [internal quotation marks omitted]; see Williams Oil Co. v Randy Luce E-Z Mart One, 302 AD2d 736, 738-739 [2003]; see also Murray v SYSCO Corp., 273 AD2d 760, 761-762 [2000]). Further, the proof could not support a finding that “the contract would not have been breached but for [Gilchrist’s] conduct” (Lana & Samer v Goldfine, 7 AD3d 300, 301 [2004]; see Nоrtheast Wine Dev., LLC v Service-Universal Distribs., Inc., 23 AD3d 890, 893 [2005], affd 7 NY3d 871 [2006]). Plaintiff failed to offer proof that Gilchrist’s conduct was not in furtherance of his official duties and not motivated by genuine municipal/public health and safеty concerns (regardless of their merit), or was “motivated by malice, personal gain or a desire to injure plaintiff” in any respect or to unjustifiably procure Starfire’s breach of its contrаct with plaintiff (Rosario-Suarz v Wormuth Bros. Foundry, 233 AD2d at 577). Also, the record clearly reflects that Bradley and Sherwood had determined that the site was not suitable prior to the arranged meeting with Gilchrist, and plaintiff did not submit proof capable of establishing that “but for” Gilchrist’s subsequent action, Starfire would not have breached its contract with plaintiff. Thus, the tortious interference cause of action was correctly dismissed as against thе City and Gilchrist.
Next, we agree with Supreme Court’s conclusion that plaintiff’s sixth cause of action against the City—for diminution in property value—to the extent it is even cognizable—“clearly sounds in tort, аs it alleges a breach of a duty of care. It thus falls squarely within the ambit of
Plaintiff is correct that compliance with notice of claim requirements of
Nonetheless, the city defendants were properly awarded summary judgment dismissing plaintiff’s second and seventh claims. To be sure,
Plaintiff’s fifth claim for illegal “spot zoning”—if even a cause of action in a plenary action—is not premised upon constitutional violations or
Plaintiff’s remaining arguments have been considered and found to be without merit.
Mercure, J.P., Peters, Carpinello and Lahtinen, JJ., concur.
Ordered that the order is affirmed, without costs.