State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 23, 2014 517725
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ULLMANGLASS et al.,
Appellants-
Respondents,
v MEMORANDUM AND ORDER
ONEIDA, LTD., et al.,
Respondents-
Appellants.
________________________________
Calendar Date: September 3, 2014
Before: Peters, P.J., Lahtinen, Garry, Rose and Clark, JJ.
__________
Primmer Piper Eggleston & Cramer, PC, Burlington, Vermont,
(Gary L. Franklin of counsel), for appellants-respondents.
Bond Schoeneck & King, PLLC, Syracuse (Louis Orbach of
counsel), for respondents-appellants.
__________
Peters, P.J.
Cross appeals from an order of the Supreme Court (Cerio
Jr., J.), entered August 13, 2013 in Madison County, which
granted defendants' motion for summary judgment dismissing the
complaint.
Plaintiffs commenced this action against defendants
asserting various tort claims based upon defendants' alleged
interference with a consulting contract between plaintiff Norbert
Ullmann and Inn Crystal Vertriebsg MBH. More specifically,
plaintiffs alleged that defendants made disparaging and false
remarks about them to principals of Inn Crystal, which caused it
to cancel the consulting contract. Prior to answering,
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defendants moved to dismiss the complaint as barred by the
statute of limitations and for failure to state a cause of
action. Supreme Court partially granted the motion and dismissed
plaintiffs' cause of action for injurious falsehood and business
disparagement, but left intact plaintiffs' claims for tortious
interference with contractual relations and tortious interference
with prospective business relations. Upon appeal, this Court
affirmed (86 AD3d 827 [2011]). Defendants then moved for summary
judgment dismissing the remaining claims. Supreme Court, while
concluding that those claims were not time-barred by the
applicable statute of limitations (see CPLR 214 [4]), dismissed
them based upon a lack of causation between defendants' alleged
actions and the cancellation of the consulting contract as well
as the ending of plaintiffs' business relationship with Inn
Crystal. Plaintiffs appeal,1 and defendants cross-appeal.2
Causation is an essential element of a claim for tortious
interference with contractual relations. Such a cause of action
requires proof that, "but for" the defendants' conduct, the
plaintiff would not have breached its contract with a third party
(see DiFabio v Jordan, 113 AD3d 1109, 1110 [2014]; Hobler v
Hussain, 111 AD3d 1006, 1008 [2013]; Schmidt & Schmidt, Inc. v
Town of Charlton, 103 AD3d 1011, 1015 [2013]).
In opposition to defendants' motion for summary judgment,
plaintiffs submitted a letter – not previously disclosed during
1
At oral argument, plaintiffs withdrew their claim for
tortious interference with prospective business relations.
2
Defendants cross-appeal from that part of Supreme Court's
order that declined to dismiss the subject claims on statute of
limitations grounds. However, inasmuch as defendants were
granted summary judgment dismissing the complaint, they are not
aggrieved by the court's order and their cross appeal must,
therefore, be dismissed (see Parochial Bus Sys. v Board of Educ.
of City of N.Y., 60 NY2d 539, 544-545 [1983]; Ford v Rifenburg,
94 AD3d 1285, 1285 n 1 [2012]). Their statute of limitations
argument is, nonetheless, properly before us as an alternative
ground for affirmance (see id.).
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discovery – that was written by Ullmann to a principal at Inn
Crystal following their meeting concerning Inn Crystal's
notification that it was cancelling the consulting contract. In
the letter, Ullmann summarized the meeting and, although he
disputed the allegations concerning his poor relationship with
defendants, he readily acknowledged that Inn Crystal wished to
terminate the consulting contract because it could no longer
afford to pay Ullmann his commissions given the discounts that it
was providing to defendants. This letter established that,
regardless of whether defendants acted in such a manner as to
interfere with the consulting contract, the contract with Ullmann
was terminated for financial reasons (see DiFabio v Jordan, 113
AD3d at 1110; Hobler v Hussain, 111 AD3d at 1008; Schmidt &
Schmidt, Inc. v Town of Charlton, 103 AD3d at 1014-1015). Thus,
it cannot be shown that "but for" defendants' alleged
interference, plaintiffs' contractual relationship with Inn
Crystal would have continued (see id.; Snyder v Sony Music
Entertainment, 252 AD2d 294, 300 [1999]). We reject plaintiffs'
assertion that other correspondence in the record supports a
different conclusion or otherwise raises a triable issue as to
whether the financial harm incurred by plaintiffs was
attributable to defendants' purported conduct. Absent proof of
causation, plaintiffs' claim for tortious interference with
contract was properly dismissed.
Finally, we are unpersuaded by plaintiffs' contention that
summary judgment should have been denied as premature.
Plaintiffs have not demonstrated how further discovery would
yield evidence sufficient to defeat the motion, particularly
given the admission contained in Ullmann's letter (see Hobler v
Hussain, 111 AD3d at 1009; 2 N. St. Corp. v Getty Saugerties
Corp., 68 AD3d 1392, 1395-1396 [2009], lv denied 14 NY3d 706
[2010]; Mitchell v Atlas Copco N. Am., Inc., 307 AD2d 635, 636
[2003]). Moreover, plaintiffs had ample time and opportunity to
conduct additional discovery, including depositions, before this
motion was brought, and have not proffered an adequate excuse for
their failure to do so (see Meath v Mishrick, 68 NY2d 992,
994-995 [1986]; Calabrese Bakeries, Inc. v Rockland Bakery, Inc.,
102 AD3d 1033, 1035 [2013]; Steinborn v Himmel, 9 AD3d 531, 535
[2004]; Halliday v Norton Co., 265 AD2d 614, 617 [1999], lv
dismissed and denied 94 NY2d 894 [2000]; Younger v Spartan Chem.
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Co., 252 AD2d 265, 268 [1999]).
In light of our determination, we need not address the
alternative ground for affirmance advanced by defendants.
Lahtinen, Garry, Rose and Clark, JJ., concur.
ORDERED that the order is affirmed, without costs.
ORDERED that the cross appeal is dismissed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court