Lynch Dev. Assoc., Inc. v Johnson, 2023 NY Slip Op 04586 [219 AD3d 1328]

September 13, 2023

Appellate Division, Second Department

[*1]

Lynch Development Associates, Inc., Respondent,

v

Bartholomew W. Johnson, Defendant/Third-Party Plaintiff-Appellant. Kevin Lynch, Third-Party Defendant-Respondent.

The Johnson Law Office, P.C., Brooklyn, NY (Robert W. Johnson of counsel), for defendant/third-party plaintiff-appellant.

Zuckerman Gore Branders & Crossman, LLP, New York, NY (Ashley Dale and Ted Poretz of counsel), for plaintiff-respondent and third-party defendant-respondent.

In an action, inter alia, to recover damages for breach of contract, the defendant/third-party plaintiff, Bartholomew W. Johnson, appeals from an order of the Supreme Court, Suffolk County (George Nolan, J.), dated December 30, 2021. The order, insofar as appealed from, granted those branches of the motion of the plaintiff, Lynch Development Associates, Inc., and the third-party defendant, Kevin Lynch, which were for summary judgment dismissing the defendant/third-party plaintiff’s counterclaims and the third-party causes of action, alleging, inter alia, tortious interference with a business relationship and intentional infliction of emotional distress.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff, Lynch Development Associates, Inc. (hereinafter LDA), an organization which offers capital management and fund-raising services to religious institutions, commenced this action against the defendant/third-party plaintiff, Bartholomew W. Johnson, a former employee, inter alia, to recover damages for the alleged breach of a non-competition agreement. Johnson asserted counterclaims, among other things, to recover damages for tortious interference with a business relationship and intentional infliction of emotional distress, and commenced a third-party action against LDA’s president, Kevin Lynch, to recover damages, inter alia, for those same torts. LDA and Lynch jointly moved, inter alia, for summary judgment dismissing those counterclaims and third-party causes of action. In an order dated December 30, 2021, the Supreme Court, among other things, granted those branches of LDA’s and Lynch’s motion which were for summary judgment dismissing the counterclaims and third-party causes of action alleging tortious interference with a business relationship and intentional infliction of emotional distress. Johnson appeals.

Tortious interference with a business relationship requires proof of more culpable conduct than that which is required to demonstrate tortious interference with a contract ( see Carvel Corp. v Noonan , 3 NY3d 182 , 189-190 [2004]). To establish a prima facie case of tortious interference with a business relationship, the complaining party must prove, inter alia, either that the offending party “acted solely out of malice” ( 106 N. Broadway, LLC v Lawrence , 189 AD3d 733 , 741 [2020]; see Stuart’s, [*2] LLC v Edelman , 196 AD3d 711 , 713 [2021]), that is, “for the sole purpose of inflicting intentional harm” on the complaining party ( Carvel Corp. v Noonan , 3 NY3d at 190, quoting NBT Bancorp v Fleet/Norstar Fin. Group , 215 AD2d 990 [1995], affd 87 NY2d 614 [1996]), or “used improper or illegal means” ( 106 N. Broadway, LLC v Lawrence , 189 AD3d at 741; see Stuart’s, LLC v Edelman , 196 AD3d at 713) that constituted “a crime or independent tort” or other “egregious wrongdoing” ( see Carvel Corp. v Noonan , 3 NY3d at 189-190). The “ ’wrongful means’ ” supporting a cause of action for intentional interference with a business relationship may include “physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure,” but will not include “persuasion alone,” even where it is “knowingly directed at interference with the contract” ( Guard-Life Corp. v Parker Hardware Mfg. Corp. , 50 NY2d 183, 191 [1980]; see Carvel Corp. v Noonan , 3 NY3d at 191). Conduct which is “motivated by economic self-interest cannot be characterized as solely malicious” ( Stuart’s, LLC v Edelman , 196 AD3d at 714; see Law Offs. of Ira H. Leibowitz v Landmark Ventures, Inc. , 131 AD3d 583 , 586 [2015]).

Here, LDA and Lynch demonstrated, prima facie, that their actions were not solely malicious, as they were motivated by economic self-interest ( see Stuart’s, LLC v Edelman , 196 AD3d at 714; Law Offs. of Ira H. Leibowitz v Landmark Ventures, Inc. , 131 AD3d at 585). Similarly, LDA and Lynch demonstrated, prima facie, that their actions did not constitute “a crime or independent tort” or other “egregious wrongdoing” that would constitute wrongful means ( see Carvel Corp. v Noonan , 3 NY3d at 189-190; 106 N. Broadway, LLC v Lawrence , 189 AD3d at 741). In opposition, Johnson failed to raise a triable issue of fact. Moreover, contrary to Johnson’s contention, the Supreme Court’s determination as to these issues was not premature ( see CPLR 3212 [f]; R. Vig Props., LLC v Rahimzada , 213 AD3d 871 , 874 [2023]). Accordingly, the court properly granted that branch of LDA’s and Lynch’s motion which was for summary judgment dismissing Johnson’s counterclaim and third-party cause of action alleging tortious interference with a business relationship.

The tort of intentional infliction of emotional distress requires a plaintiff to establish four elements: (1) “extreme and outrageous conduct,” (2) committed with the intent to cause, or with disregard of a “substantial probability of causing, severe emotional distress,” (3) a “causal connection” between the conduct and injury, and (4) “severe” emotional distress ( Howell v New York Post Co. , 81 NY2d 115, 121 [1993]; see Davydov v Youssefi , 205 AD3d 881 [2022]). Liability will be imposed only when the conduct is “ ’so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community’ ” ( Howell v New York Post Co. , 81 NY2d at 122 [internal quotation marks omitted], quoting Murphy v American Home Prods. Corp. , 58 NY2d 293, 303 [1983]). “[O]f the four essential elements of the tort, the outrageousness element [is] the one most susceptible to determination as a matter of law” since it is “rigorous, and difficult to satisfy” ( Taggart v Costabile , 131 AD3d 243 , 249, 250 [2015] [internal quotation marks omitted]; see Howell v New York Post Co. , 81 NY2d at 122).

Here, LDA and Lynch established, prima facie, that their conduct in seeking to clarify Johnson’s employment relationship and to enforce the non-competition agreement cannot be characterized as so “extreme and outrageous” that it exceeds “all possible bounds of decency” ( Howell v New York Post Co. , 81 NY2d at 121). In opposition, Johnson failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of LDA’s and Lynch’s motion which was for summary judgment dismissing Johnson’s counterclaim and third-party cause of action alleging intentional infliction of emotional distress.

Johnson’s remaining contention is without merit. Connolly, J.P., Brathwaite Nelson, Chambers and Voutsinas, JJ., concur..