Butler v. Delaware Otsego Corp.

234 A.D.2d 639, 650 N.Y.S.2d 483, 1996 N.Y. App. Div. LEXIS 12323

Opinion

—Spain, J.

Appeal from an order of the Supreme Court (Mugglin, J.), entered January 8, 1996 in Otsego County, which, inter alia, partially denied defendants’ motion for summary judgment* dismissing the complaint.

The relevant facts underlying this litigation may be found in our recent decision of an earlier appeal in this matter (218 AD2d 357); there, we affirmed Supreme Court’s partial denial of defendants’ motion, pursuant to CPLR 3211, to dismiss the complaint. During the pendency of the aforementioned appeal defendants moved for an order, pursuant to CPLR 3212, granting summary judgment. Supreme Court determined that defendants were entitled to summary judgment regarding the first and third causes of action of plaintiff David K. Butler, Sr. and the first cause of action of plaintiff Woodsmen Builders, Inc. However, Supreme Court denied that portion of the motion regarding the remaining causes of action for "interference with expected future business”. Defendants appeal.

We affirm. Plaintiffs’ submissions in opposition to defendants’ motion for summary judgment overcome any entitlement defendants may have shown for such relief (see, Zuckerman v City of New York, 49 NY2d 557; Flacke v NL Indus., 228 AD2d 888). Although, in this case, plaintiffs and defendants are not competing business entities, the "wrongful means” burden as enunciated in NBT Bancorp v Fleet/ Norstar Fin. Group (87 NY2d 614) and Guard-Life Corp. v Parker Hardware Mfg. Corp. (50 NY2d 183) has been met. Plaintiffs have tendered proof, in evidentiary form, that defendants, inter alia, removed derogatory information from Butler’s confidential personnel file and deliberately disseminated that information adversely affecting plaintiffs’ prospective contractual relations with specific customers.

We have considered defendants’ remaining contention, which raises a constitutional issue, and find it to be without merit.

Cardona, P. J., Mikoll, Yesawich Jr. and Carpinello, JJ., concur. Ordered that the order is affirmed, with costs.