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             New York Merchants Protective Co., Inc., appellant, v

               Afranio Rodriguez, et al., respondents. (Index No.

                                   007756/06)



                                   2006-10491



             SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND

                                   DEPARTMENT



          2007 NY Slip Op 5242; 41 A.D.3d 565; 837 N.Y.S.2d 341; 2007

                           N.Y. App. Div. LEXIS 7441





                             June 12, 2007, Decided



NOTICE:



   THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING THE

RELEASE OF THE FINAL PUBLISHED VERSION.    THIS OPINION IS UNCORRECTED AND

SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.





COUNSEL: Kirschenbaum & Kirschenbaum, P.C., Garden City, N.Y. (Kenneth

Kirschenbaum of counsel), for appellant.



Novick, Edelstein, Lubell, Reisman, Wasserman & Leventhal, P.C., Yonkers, N.Y.

(Stephen I. Wohlberg of counsel), for respondents.



JUDGES: HOWARD MILLER, J.P., WILLIAM F. MASTRO, GABRIEL M. KRAUSMAN, EDWARD D.

CARNI, JJ. MILLER, J.P., MASTRO, KRAUSMAN and CARNI, JJ., concur.



OPINION



   DECISION & ORDER



   In an action, inter alia, to recover damages for tortious interference with

contract, the plaintiff appeals, as limited by its brief, from so much of an

order of the Supreme Court, Nassau County (Palmieri, J.), dated August 14, 2006,

as granted those branches of the defendants' motion which were to dismiss so

much of the first cause of action as alleged breach of a noncompetition

agreement insofar as asserted against the defendant Afranio Rodriguez, the

second cause of action, and so much of the third cause of action for injunctive

relief as was predicated on those claims.



   ORDERED that the order is reversed insofar as appealed from, on the law, with

costs, and those branches of the defendants' motion which were to dismiss so

much of the first cause of action as alleged breach of a noncompetition

agreement insofar as asserted against the defendant Afranio Rodriguez, the

second cause of action, and so much of the third cause of action for injunctive

relief as was predicated on those claims are denied.



   A motion to dismiss a complaint pursuant to CPLR 3211(a)(7) will fail if,

taking all facts alleged as true and according them every possible inference

favorable to the plaintiff, the complaint states in some recognizable form any

cause of action known to our law (see Shaya B. Pac., LLC v Wilson, Elser,

Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 827 N.Y.S.2d 231; see AG Capital

Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591, 842 N.E.2d

471, 808 N.Y.S.2d 573). In this case, the complaint sufficiently alleged a cause

of action against the defendant Afranio Rodriguez to recover damages  for the

breach of a noncompetition agreement he executed with the plaintiff's

predecessor, incident to the sale of his business to that entity. Accordingly,

the Supreme Court erred in granting that branch of the defendants' motion which

was to dismiss so much of the first cause of action as alleged a violation of

that agreement on the part of Afranio.



   Moreover, the elements of a cause of action to recover damages for tortious

interference with contract, alleged in the second cause of action, are the

existence of a valid contract with a third party, defendant's knowledge of that

contract, defendant's intentional and improper procuring of a breach, and

damages (see White Plains Coat & Apron Co. v Cintas Corp., 8 NY3d 422; Lama

Holding Co. v Smith Barney, 88 N.Y.2d 413, 424, 668 N.E.2d 1370, 646 N.Y.S.2d

76). The complaint sufficiently alleged this cause of action as well, and it

should not have been dismissed.



   The third cause of action sought injunctive relief. In light of its

determination of the defendants' motion, set forth above, the Supreme Court

dismissed so much of the third cause of action as was interposed to restrain the

alleged continued violation of the noncompetition agreement by Afranio, as well

as the alleged continued tortious interference by all of the defendants with the

plaintiff's contracts. In light of our determination, that portion of the third

cause of action should not have been dismissed.



   The plaintiff's remaining contentions are without merit.



   MILLER, J.P., MASTRO, KRAUSMAN and CARNI, JJ., concur.