FKB's Andrew S. Kowlowitz and Eric Mercurio win appeal in the Appellate Division, Second Department unanimously affirming with costs the dismissal of a Complaint against a prominent construction management firm. 3/30/2011

FKB's client, a construction management firm, was retained by a developer to manage the construction of a certain "high-end" residential condominium building in Park Slope, Brooklyn. The developer retained an entity to perform masonry work on the construction site. In June 2008, the developer terminated its construction contract with the masons for poor workmanship. On August 1, 2008, the masons commenced suit against the developer and the construction management firm seeking payment of the balance owed under the construction contract, in excess of $800,000. With respect to the construction managers, the Complaint contained two causes of action: 1) tortious interference with a contractual relationship; and 2) conspiracy. The remaining claims against the developer sounded in breach of contract.

FKB appeared on behalf of the construction management firm. In lieu of filing an answer, FKB filed a pre-answer motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (a) (7). Therein, FKB argued that plaintiff's claim for tortious interference was deficient and subject to dismissal as plaintiff has not pled, nor could not prove, that the construction management firm "intentionally induced" the developer to breach the construction contract with plaintiff- an essential element of a tortious interference claim. FKB presented a lengthy record demonstrating that two unaffiliated architects and engineers observed the mason's substandard workmanship and recommended that its contract be terminated. Thus, FKB argued that the developer exercised its own independent judgment and elected to terminate its contract (based in part) on the advice of two independent architects and engineers. Additionally, FKB argued that the independent architects' and engineers' critical opinions bolstered the notion that the defendant construction manager's opinions and recommendations were justified (as the masonry work was substandard) and, therefore, non-actionable. With respect to the second cause of action for conspiracy, FKB argued that New York Courts do not recognize the independent tort of civil conspiracy and a plaintiff must first prove the existence of a viable "underlying tort" to sustain a claim for conspiracy. In this case, FKB argued that the plaintiff's inability to plead the "underlying tort" of tortious interference renders its claim for conspiracy unsustainable.

Following oral argument on the motion, Hon. Timothy S. Driscoll, J.S.C. (Nassau County) issued an Order dated July 30, 2009, granting the defendant construction manager's motion in its entirety, finding that the plaintiff/masons could not plead and prove a claim for tortious interference with a contract or conspiracy. The plaintiff/masons pursued an appeal.

On appeal before the Second Department, FKB argued that the lower court properly dismissed the Complaint against the defendant construction management firm on the basis that plaintiff's claims were deficiently pled and documentary evidence precluded plaintiff from pleading and proving a prima facie claim of tortious interference with contract or conspiracy. Following oral argument, the Second Department issued an Opinion dated March 22, 2011 affirming the lower court's dismissal of the Complaint and awarding costs to the defendant construction management firm.

The appellate motion papers were drafted by Andrew S. Kowlowitz and Eric Mercurio, and the appeal was argued by Andrew S. Kowlowitz. The Opinion is reported at 2011 WL 1088126.

Home | Email | Site map | Client Rights | Disclaimer | Top of page