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GRAY v. GROVE MFG. CO.

June 9, 1997

FRANK GRAY, as President, and JOSEPH RIZZUTO, as Business Manager and Financial Secretary of INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 14-14B, AFL-CIO and as Trustee of the ANNUITY, PENSION, WELFARE and TRAINING FUNDS of INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 14-14B, AFL-CIO and JOHN and JANE DOE, Beneficiaries of the ANNUITY, PENSION, WELFARE and TRAINING FUNDS of INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 14-14B, AFL-CIO, Plaintiffs, against GROVE MANUFACTURING COMPANY, a Division of KIDDE, INC. a/k/a GROVE WORLDWIDE and GROVE NORTH AMERICA, a Division of KIDDE INDUSTRIES, INC., Defendants.


The opinion of the court was delivered by: DEARIE

 DEARIE, District Judge.

 Plaintiffs are the president of the International Union of Operating Engineers, Local 14-14B, AFL-CIO ("Local 14"), the business manager of Local 14 and trustee of Local 14's benefit plans, and unnamed beneficiaries of the benefit plans. Plaintiffs commenced this action against defendants Grove Manufacturing Company, et al. ("Grove") in New York state court seeking damages for tortious interference with contract and prima facie tort, and a permanent injunction. Grove removed the case to this Court on the ground that a federal question had arisen based on pre-emption by section 301 of the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 185. Grove has moved for summary judgment, arguing that it is entitled to judgment as a matter of law on the prima facie tort claim, that the action is pre-empted by federal law, and that Local 14 lacks standing. Grove also challenges the adequacy of the complaint with respect to the prima facie tort claim.

 BACKGROUND

 Plaintiff Local 14 and the General Contractors Association of New York ("GCA") are parties to a Collective Bargaining Agreement ("CBA"), pursuant to which a GCA employer must assign a member of Local 14 when it uses a rough terrain hydraulic crane (a "cherrypicker") with a load capacity of 36 tons or more ("cherrypicker provision"). CBA Art. IX, § 8(x) (Def. Notice of Motion, Exs. E-F). The CBA specifies mandatory grievance and arbitration procedures to resolve contract disputes. CBA Art. V, § 2. Last year, Local 14 demanded arbitration with one GCA member over that employer's alleged violation of the CBA's cherrypicker provision. See Pl. Mem. of Law at 8.

 Grove manufactures Model RTG35 cherrypickers, some of which have been sold to GCA members. Def. Rule 3(g) Stmnt. P 6. The complaint alleges that the RTG35 has a lift capacity of 45 tons. Amended Compl. P 25. The first cause of action alleges that Grove, acting in concert with GCA members, tortiously interfered with the CBA by marketing the RTG35 as a 35 ton cherrypicker, thus obviating the need for the employer to assign a Local 14 member as an additional worker, as required by the cherrypicker provision. Id. PP 29, 31. Based on the same factual predicate, the second cause of action seeks recovery for prima facie tort, id. PP 37-39, and the third cause of action requests an injunction restraining Grove from selling the RTG35 in New York City. Id. PP 42-43.

 Grove submits a sales director's affidavit stating that the RTG35 has a maximum lift capacity of 35 tons, and that Grove manufactures the cherrypicker for business reasons -- to satisfy market demand and to earn a profit. Minnich Aff. At oral argument, Grove argued that determining the cherrypicker's lift capacity implicates OSHA regulations, industry standards, and custom and usage, among other considerations.

 The complaint alleges that Local 14 members have lost employment, wages and benefits, and that Local 14's benefit plans have been deprived of benefit contributions as a result of Grove's wrongful acts. Amended Compl. PP 33, 37, 42. Plaintiffs seek $ 15,000,000 in damages. Id. PP 34, 40.

 DISCUSSION

 1. Prima Facie Tort

 Grove contends that plaintiffs have failed to state a cause of action for prima facie tort because they have not pleaded special damages. Grove also seeks summary judgment on this claim because plaintiffs have failed to properly support their allegation of Grove's disinterested malevolence. Def. Mem. of Law at 19-21. The Court agrees on both points.

 Under New York law, the elements of a prima facie tort are "(1) intentional infliction of harm, (2) causing special damages, (3) without excuse or justification, (4) by an act or series of acts that would otherwise be lawful." Curiano v. Suozzi, 63 N.Y.2d 113, 117, 480 N.Y.S.2d 466, 469 N.E.2d 1324 (1984). Pleading special damages requires "a particularized statement of the reasonable, identifiable and measurable" loss. Nu-Life Constr. Corp. v. Bd. of Educ. of New York City, 204 A.D.2d 106, 108, 611 N.Y.S.2d 529 (1st Dep't 1994); see also Starishevsky v. Parker, 225 A.D.2d 480, 480, 639 N.Y.S.2d 377 (1st Dep't 1996) (wages and benefits must be identifiable). Round figures with no itemization do not satisfy the requirement of pleading special damages. Gay v. Carlson, 1992 U.S. Dist. LEXIS 15799, No. 89- CV-4757, 1992 WL 309819, at *10 (S.D.N.Y. Oct. 15, 1992), aff'd in part, 60 F.3d 83 (2d Cir. 1995).

 At oral argument, plaintiffs conceded that their prima facie tort cause of action must fail because they have not pleaded special damages adequately. Plaintiffs allege in general terms that Local 14 members lost "employment, wages and benefits" and Local 14 benefit funds lost contributions. Amended Compl. P 37. A lump sum damages amount of $ 15,000,000 is claimed, with no attempt at itemization or specificity. See id. P 40.

 Also fatal to plaintiffs' prima facie tort claim is their failure to raise a genuine issue of fact that "disinterested malevolence" was the "sole motive" for Grove's actions, a required element of prima facie tort under New York law. See Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 333, 464 N.Y.S.2d 712, 451 N.E.2d 459 (1983). The amended complaint alleges that Grove "lack[s] justification for unlawfully and intentionally causing harm to Plaintiffs' commercial interests." Amended Compl. P 38. In support of its summary judgment motion, Grove submits an affidavit by ...


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