Rose v. Different Twist Pretzel, Inc.

2020 NY Slip Op 4500, 126 N.Y.S.3d 911, 186 A.D.3d 631

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 12, 2020
• Docket: Index No. 92791/14
• Status: Published

Opinion

Rose v Different Twist Pretzel, Inc. (2020 NY Slip Op 04500)

Rose v Different Twist Pretzel, Inc.

2020 NY Slip Op 04500

Decided on August 12, 2020

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 12, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
LEONARD B. AUSTIN, J.P.
JOSEPH J. MALTESE
HECTOR D. LASALLE
VALERIE BRATHWAITE NELSON, JJ.

2018-08691
(Index No. 92791/14)

[*1]Wayne Rose, appellant,

v

Different Twist Pretzel, Inc., et al., defendants, Reshma Shah, et al., respondents.

Wayne Rose, Brooklyn, NY, appellant pro se.

DECISION & ORDER

In an action, inter alia, to recover damages for tortious interference with contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated May 18, 2018. The order, insofar as appealed from, upon renewal and reargument, in effect, adhered to a prior determination in an order of the same court dated January 19, 2018, granting the cross motion of the defendants Reshma Shah and Whitehall Pretzel & Ice Cream, Inc., for summary judgment dismissing the cause of action alleging tortious interference with contract insofar as asserted against them.

ORDERED that the order dated May 18, 2018, is reversed insofar as appealed from, on the law, with costs, the determination in the order dated January 19, 2018, granting the cross motion of the defendants Reshma Shah and Whitehall Pretzel & Ice Cream, Inc., for summary judgment dismissing the cause of action alleging tortious interference with contract insofar as asserted against them is vacated, and the cross motion is denied.

This action stems from a written master license agreement (hereinafter the contract) dated May 25, 2005, between the plaintiff and the defendant Chapel Banks Investments, Inc., wherein the plaintiff was purportedly given the exclusive right to open Different Twist Pretzel franchises in the State of New York. The plaintiff alleged, inter alia, that the defendants Reshma Shah and Whitehall Pretzel & Ice Cream, Inc. (hereinafter together the defendants), tortiously interfered with the plaintiff's contract.

The elements of a cause of action to recover damages for tortious interference with a contract are the existence of a valid contract with a third party, the defendant's knowledge of that contract, the defendant's intentional and improper procuring of a breach, and damages (see New York Merchants Protective Co., Inc. v Rodriguez, 41 AD3d 565, 566).

Here, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law, and their cross motion for summary judgment dismissing the cause of action alleging tortious interference with contract insofar as asserted against them should have been denied (see generally CPLR 3212[b]). As the defendants failed to satisfy their prima facie burden, the sufficiency of the plaintiff's opposition papers need not be addressed (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The plaintiff's remaining contentions are without merit, are improperly before this Court, or need not be addressed in light of our determination.

AUSTIN, J.P., MALTESE, LASALLE and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court