Law Offs. of Ira H. Leibowitz v. Landmark Ventures, Inc.

In an action to recover legal fees, the defendant appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Suffolk County (Rebolini, J.), entered October 18, 2012, as, upon an order of the same court dated October 1, 2012, inter alia, granting those branches of the plaintiffs’ motion which were for summary judgment on the cause of action alleging breach of contract and pursuant to CPLR 3211 (a) (7) to dismiss its counterclaim, is in favor of the plaintiffs and against it in the principal sum of $14,536.33, and, in effect, dismissed *584its counterclaim, and the plaintiffs cross-appeal from so much of the same judgment as failed to award them an attorney’s fee or to impose a sanction upon the defendant pursuant to 22 NYCRR 130-1.1.

Ordered that the judgment is affirmed, with costs to the plaintiffs.

The plaintiffs, Ira H. Leibowitz and his law offices, commenced this action to recover legal fees for services rendered on behalf of the defendant, Landmark Ventures, Inc. (hereinafter Landmark), in connection with two separate matters. The plaintiffs’ services on each matter were rendered pursuant to separate retainer agreements for each matter.

The Supreme Court properly granted that branch of the plaintiffs’ motion which was for summary judgment on the cause of action alleging breach of contract. “Construction of an unambiguous contract is a matter of law, and the intention of the parties may be gathered from the four corners of the instrument and should be enforced according to its terms” (Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [2007]; see Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004]; A. Gugliotta Dev., Inc. v First Am. Tit. Ins. Co. of N.Y., 112 AI)3d 559, 560 [2013]). “A contract is unambiguous if the language it uses has ‘a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion’ ” (Kasowitz, Benson, Torres & Friedman, LLP v Duane Reade, 98 AD3d 403, 406 [2012], affd 20 NY3d 1082 [2013], quoting Breed v Insurance Co. of N. Am., 46 NY2d 351, 355 [1978]).

Here, the plaintiffs established, prima facie, their entitlement to judgment as a matter of law on the cause of action alleging breach of contract by submitting certain email exchanges between the parties, which demonstrated, “[b]y the plain language employed,” that the plaintiffs made an offer to represent Landmark in each matter for a certain fee, and that Landmark accepted that offer (Kasowitz, Benson, Torres & Friedman, LLP v Duane Reade, 98 AD3d at 405). In one matter, the parties agreed that the plaintiffs would represent Landmark at a rate of $350 per hour. The invoices documenting the number of hours worked and the amount of disbursements paid out demonstrated, prima facie, the plaintiffs’ entitlement to legal fees in the sum of $4,760 in connection with the services rendered for that matter. In the second matter, the agreement was for an initial retainer fee of $5,000, plus a 25% contingency fee with respect to any sums that *585Landmark ultimately recovered in that matter. Since it is undisputed that, shortly after the commencement of an action in connection with the second matter, Landmark entered into a stipulation of settlement whereby Landmark recovered $40,000, the plaintiffs established, prima facie, entitlement to their full fee of $5,000 plus a contingency fee of 25% of $40,000.

In opposition, Landmark failed to raise a triable issue of fact.

Landmark’s counterclaim, which alleged tortious interference with contract and tortious interference with prospective business relations, was premised upon the plaintiffs’ alleged contact with the third party with whom Landmark had entered into the stipulation of settlement in connection with the second matter. Specifically, Landmark alleged that, contrary to the terms of the stipulation, the plaintiffs requested that certain of the agreed-upon payments be made directly to them as Landmark’s counsel, rather than to Landmark. The ostensible purpose of this communication was to ensure that the plaintiffs would be able to deduct their legal fees from the settlement funds.

The Supreme Court properly granted that branch of the plaintiffs’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss so much of the counterclaim as alleged tortious interference with contract. A necessary element of such cause of action is the intentional and improper procurement of a breach and damages (see White Plains Coat & Apron Co., Inc. v Cintas Corp., 8 NY3d 422, 426 [2007]). Here, Landmark failed to adequately plead facts that would establish that the plaintiffs, in communicating with the third party to secure their attorney’s fees, intentionally procured that party’s breach of the stipulation of settlement (see Dune Deck Owners Corp. v Liggett, 85 AD3d 1093, 1095 [2011]).

To the extent that the counterclaim sought recovery based on a theory of tortious interference with prospective business relations, the Supreme Court properly granted that branch of the plaintiffs’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss that portion of the counterclaim. A claim for tortious interference with prospective business relations does not require a breach of an existing contract, but the party asserting the claim must meet a “more culpable conduct” standard (NBT Bancorp v Fleet / Norstar Fin. Group, 87 NY2d 614, 621 [1996]). This standard is met where the interference with prospective business relations was accomplished by wrongful means or where the offending party acted for the sole purpose of harming the other party (see Carvel Corp. v Noonan, 3 NY3d *586182, 190 [2004]; Caprer v Nussbaum, 36 AD3d 176, 204 [2006]). “ ‘Wrongful means’ include physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure” (Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183, 191 [1980], quoting Restatement [Second] of Torts §§ 768, Comment e and 767, Comment c). As a general rule, the offending party’s conduct must amount to a crime or an independent tort, as conduct that is neither criminal nor tortious will generally be “lawful” and thus insufficiently “culpable” to create liability for interference with prospective business relations (Carvel Corp. v Noonan, 3 NY3d at 190 [internal quotation marks omitted]). The mere violation of an attorney disciplinary rule will only create liability if actual damages are incurred as a result of the violating conduct (see Tabner v Drake, 9 AD3d 606, 610 [2004]). In addition, where the offending party’s actions are motivated by economic self-interest, they cannot be characterized as solely malicious (see Out of Box Promotions, LLC v Koschitzki, 55 AD3d 575, 577 [2008]). Here, contrary to the conclusion of our dissenting colleague, the allegations in the counterclaim do not establish the elements of tortious interference with prospective business relations. The allegations that the plaintiffs contacted a settling party to protect their attorney’s fees after having been discharged as Landmark’s counsel, while arguably alleging a violation of a disciplinary rule, do not, without more, allege that the plaintiffs’ acts constituted a crime, or an independent tort, or that the plaintiffs acted solely for the purpose of harming Landmark (see Worldcare Intl., Inc. v Kay, 119 AD3d 554, 556-557 [2014]; Adler v 20/20 Cos., 82 AD3d 915, 918 [2011]).

The parties’ remaining contentions are without merit.

Accordingly, we affirm the judgment. Dillon, J.P., Chambers and Hall, JJ., concur.