Minnelli v. Soumayah

41 A.D.3d 388, 839 N.Y.S.2d 727

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 28, 2007
• Status: Published

Opinions

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered May 22, 2006, which, to the extent appealed from as limited by the briefs, granted so much of defendant’s dismissal motion as was directed to the first cause of action (extortion and attempted extortion) in the amended complaint, and denied the motion with respect to the second and third causes of action (breach of contract and fiduciary duty), affirmed, without costs.

The first cause of action for extortion and attempted extortion, alleging that defendant attempted to compel and compelled plaintiff to deliver money to him by threatening physical harm to plaintiff and her employees and a breach of their confidentiality agreement, was properly dismissed on the ground that extortion and attempted extortion are criminal offenses (see Penal Law § 155.05 [2] [e]; § 110.00) that do not imply a private right of action (Niagara Mohawk Power Corp. v Testone, 272 AD2d 910, 911 [2000]; Crandall v Bernard, Overton & Russell, 133 AD2d 878, 879 [1987], lv dismissed and denied 70 NY2d 940 [1988]). Moreover, although extortionate behavior, coercion and duress may be elements of a cause of action for tortious interference with contract or unjust enrichment, at common law there was never a private cause of action for extortion. Rather, extortion, as it has come to be understood today— obtaining of money by force or fear—was considered robbery to be punished criminally.

To the extent that the first cause of action encompasses a claim for economic duress, that cause fails because a mere threat that does not force the other party to accede to some further demand does not constitute economic duress (see 805 Third Ave. Co. v M.W. Realty Assoc., 58 NY2d 447, 451 [1983]). And notwithstanding plaintiffs argument to the contrary, the first cause of action does not even hint at a claim for prima facie tort, which, we note, was eliminated as a separate cause of action when plaintiff amended her complaint.

Defendant had a contractual obligation not to disclose confidential information he might have acquired during the course of his employment with plaintiff. Construing the pleadings liberally and accepting the facts alleged as true (see Wiener v Lazard Freres & Co., 241 AD2d 114, 120 [1998]), the court correctly determined that the complaint states a cause of action for breach of contract based on defendant’s alleged violation of this agreement not to make such unauthorized disclosures, and for breach of fiduciary duty (see Mandelblatt v Devon Stores, 132 AD2d 162, 167-168 [1987]).

We have considered the parties’ other arguments for affirmative relief and find them unavailing. Concur—Mazzarelli, J.P., Andrias, Marlow and Buckley, JJ.