Concourse Nursing Home v. Engelstein

278 A.D.2d 35, 717 N.Y.S.2d 154, 2000 N.Y. App. Div. LEXIS 12697

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 7, 2000
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Louise Gruner Gans, J.), entered May 27, 1999, in an action for tortious interference with contract and prima facie tort, dismissing the complaint pursuant to an order which granted defendants-respondents’ motion to dismiss the complaint for failure to state a cause of action, and denied plaintiffs cross motion to compel disclosure, unanimously affirmed, with costs.

The action was properly dismissed on the ground that the tortious conduct alleged involved the petitioning of a governmental agency that is immune from suit under the First Amendment of the US Constitution. “Although the NoerrPennington doctrine initially arose in the antitrust field, the courts have expanded it to protect First Amendment petitioning of the government from claims brought under Federal and State law, including claims asserted pursuant to 42 USC § 1983 and common-law tortious interference with contractual relations.” (Weissman Real Estate v Big V Supermarkets, 268 AD2d 101, 107.) Nor can defendants’ efforts on behalf of their client, ultimately successful as they were, be considered a sham (see, id., at 110). Concur — Mazzarelli, J. P., Wallach, Andrias, Saxe and Buckley, JJ.