Anderson Properties, Inc. v. Sawhill Tubular Division, Cyclops Corp.

149 A.D.2d 950, 540 N.Y.S.2d 82, 1989 N.Y. App. Div. LEXIS 5970

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 14, 1989
• Status: Published

Opinion

Order unanimously reversed on the law with costs, in accordance with the following memorandum: The court erred in denying defendant SawhilTs motion for summary judgment dismissing plaintiff’s cause of action alleging intentional interference with contract. In support of its motion, defendant demonstrated that, at the time it hired codefendant Lee, it had no knowledge of the existence of Lee’s noncompetition agreement with plaintiff. Thus, Sawhill demonstrated that plaintiff cannot show the essential elements of its claim that Sawhill intentionally interfered with the contract with knowledge of its existence (see, Israel v Wood Dolson Co., 1 NY2d 116, 120; Burba v Rochester Gas & Elec. Corp., 90 AD2d 984, 985). In opposition to the motion, plaintiff merely demonstrated that its representative informed SawhilTs representative that Lee had "some agreements” with plaintiff. Since that conversation occurred the day after Lee was hired by Sawhill, plaintiff’s proof does not show that Sawhill hired Lee with the intent and knowledge that doing so would cause Lee to breach his noncompetition agreement with plaintiff. Thus, plaintiff has failed to show the existence of a triable question of fact on the issues of SawhilTs knowledge and intent.

The court also improvidently exercised its discretion in granting plaintiff leave to serve an amended complaint asserting additional causes of action for interference with prospective business relations and prima facie tort. Plaintiff failed to serve a cross motion requesting such relief (see, CPLR 2215) and did not provide the court with either a proposed amended pleading or an affidavit showing that the proposed amendment has merit (Martin v County of Madison, 88 AD2d 162, 165-166, appeal dismissed 59 NY2d 967). (Appeal from order of Supreme Court, Onondaga County, Hayes, J.— summary judgment.) Present—Doerr, J. P., Denman, Boomer, Pine and Lawton, JJ.