Demicco Bros. v. Consolidated Edison Co.

48 A.D.3d 376, 853 N.Y.S.2d 33

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 2008
• Status: Published

Opinion

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered May 25, 2006, which, to the extent appealed from as limited by the briefs, granted plaintiff’s motion for summary judgment as to liability for prima facie tort, unanimously reversed, on the law, without costs, and the motion denied.

The court improperly inferred disinterested malevolence, as a matter of law, from defendants’ alleged breach of their common-law duty to remove the overhead wires that plaintiff claims were interfering with its public works contract with the City of New York. Defendants’ proffered justification for their failure to remove the subject wires, i.e., that in numerous locations plaintiffs work had been completed before defendants received the City’s orders directing them to relocate the wires, raised a triable issue whether the failure to remove the wires was motivated solely by a desire to harm plaintiff (see Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 333 [1983]; L/M Ninety CM Corp. v 2431 Broadway Realty Co., 170 AD2d 373 [1991]). Concur—Mazzarelli, J.P., Andrias, Saxe, Gonzalez and Sweeny, JJ.