102 A.D.2d 705 | N.Y. App. Div. | 1984
— Order, Supreme Court, New York County (Seymour Schwartz, J.), entered July 8, 1983, unanimously reversed, on the law, to the extent appealed from, with costs, to grant plaintiff’s motion for summary judgment dismissing defendants’ second and third counterclaims for tortious interference with business relations and libel per se. f Plaintiff NRT Metals, Inc. (NRTM) is a former dealer in metals and a former supplier of copper to wire manufacturers including defendant Laribee Wire, Inc., and several of its subsidiaries and affiliates (hereafter referred to collectively as Laribee). NRTM is presently in liquidation pursuant to a plan of voluntary liquidation approved by its general creditors in April, 1980. The underlying action between the parties is based on a claim by NRTM that Laribee failed to pay for goods sold and delivered, and repudiated its contractual obligations to NRTM under a commodity agreement for forward purchases of copper. KThe issue here arises from Special Term’s denial of plaintiff’s motion to dismiss two counterclaims by Laribee alleging tortious interference with business relations and libel. K Beginning in January, 1978, the parties commenced a course of dealing in forward purchases of copper pursuant to an agreement which was never reduced to writing. Under the established procedure, James Holme, the NRTM vice-president in charge of the Laribee account, was in daily contact with Herman Rogge, Laribee’s president, regarding the price and market outlook for copper. From time to time, when Rogge deemed the market factors favorable for purchase, he placed orders with Holme, based on the current Comex price, for physical copper to be delivered several months in the future. NRTM would then place a hedge on the transaction by purchasing one or more futures contracts on the Comex to protect its financial position in the event the price of copper went up between the date of the order and the date of delivery. After NRTM had executed the hedge purchases, it would confirm the forward sale in writing. Shortly before the delivery date, Rogge would specify Laribee’s particular requirements with regard to the place of delivery, premium and shape of the copper, and a contract embodying the previously confirmed price and the additional terms would be sent to Laribee by NRTM. When the copper was finally ready for delivery, NRTM would notify the mill to release the metal to Laribee’s account, and NRTM would invoice Laribee. K On March 20, 1980 NRTM declared itself to be insolvent, and a plan of voluntary liquidation pursuant to section 305 of the Bankruptcy Code (US Code, tit 11) was adopted by NRTM’s board of directors, and approved by NRTM’s general creditors in April, 1980. Under the plan NRTM was to engage only in liquidating transactions, and was thereafter to distribute the remaining assets to the creditors. James P. Beggans, Jr., a member of the law firm representing NRTM prior to and during the liquidation proceedings and the instant lawsuit, was appointed liquidator. As of March 20, 1980, one of the forward pricing transactions (CS 884) had proceeded to the contract stage, i.e., Laribee had specified the required shape of the copper and the dates and place of delivery at Bayway, New Jersey. The first of three shipments under this contract had already been made to Laribee during the week commencing March 17. The industry practice was to require payment for metal shipments within 10 days of delivery, and the contracts in question so specified; however, under the parties’ actual practice Laribee would pay 30 days after delivery and would be charged interest for the additional 20 days. K NRTM did not deliver the remaining two 180,000-pound