FKB Obtains Dismissal on Behalf of Prominent Construction Management Firm.7/31/09

On July 31, 2009, Neil S. Kornfeld and Andrew S. Kowlowitz of FKB obtained a dismissal of all claims against a prominent New York construction management firm. The construction management defendant 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, which was well-documented.

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. On the motion, 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 Court's 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.

After hearing lengthy oral argument on the motion, Hon. Timothy S. Driscoll, J.S.C. granted the defendant construction management firm'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 Court also rejected plaintiff's cross-motion seeking leave to amend the complaint, finding any such amendment would be futile and subject to dismissal on the pleadings.

By adopting an aggressive course of action early on in the litigation, FKB was able to successfully extricate its client from the baseless litigation without the need for costly, time-consuming discovery. Please contact Neil S. Kornfeld or Andrew S. Kowlowitz should you have any questions about the decision or this practice area in general.

Neil Kornfield's bio | Andrew Kowlowitz's bio

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