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. Â Â Â 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.