breaches a contract. There generally is a purpose for the breach
and that purpose is often, if not always, a financial benefit to
the breaching party. Thus, the "but for" analysis cannot turn on
the breaching party's self-interest which is ever present.
Similarly, collusion between the breaching party and the
interfering party cannot be dispositive of the "but for"
inquiry. To the contrary, the allegation of collusion coupled
with the allegation of wrongful interference or inducement to
breach, leads to the conclusion of tortious interference by the
third-party. It must be remembered that at the pleading state,
each allegation is presumed to be true and every inference is
made in plaintiffs' favor. The reasonable inference, here, is
that Comcast procured Villares' and Gonin's breach by offering a
different and better partnership arrangement which eliminated
plaintiffs from the equation.
The critical inquiry, therefore, is whether the breaching
party would have breached its obligations without the
involvement of the interfering party. Here, it cannot be said
that Villares would have breached the Agreement with plaintiffs
without Comcast's participation. First, it was Comcast who
demanded to negotiate with only one representative from
plaintiffs' camp. Even if this does not satisfy the "but for"
test, it certainly facilitated Villares' breach by keeping
plaintiffs in the dark. Furthermore, Comcast does not dispute
that it continued negotiations with Villares and eventually
entered into a joint venture. Therefore, without Comcast's
participation in the alleged fraud, Villares would not have been
able to breach the Agreement because there would not have been a
joint venture partner to join.*fn7 Comcast's involvement as
the undisclosed co-venturer with Villares was thus a condition
precedent to Villares' breach. Because plaintiffs have
sufficiently pled "but for" causation with regard to their
tortious interference with contract claim, Comcast's motion to
dismiss this claim is denied.
This is not the case with plaintiffs' claim for tortious
interference with business relations. Under New York law, "to
prevail on a claim for tortious interference with prospective
business relations, a plaintiff must demonstrate that the
defendant interfered with business relations existing between a
plaintiff and a third party, either with the purpose of harming
the plaintiff or by means that are dishonest, unfair, or
improper." Volvo North America Corp. v. Men's Int'l
Professional Tennis Council 857 F.2d 55, 74 (2d Cir. 1988)
Here, there is no distinction between plaintiffs' claims for
tortious interference with contract and tortious interference
with business relations. Compare Cmplt ¶ 33 ("Upon information
and belief, Villares and Gonin would not have breached their
agreement with Plaintiffs but for Comcast's interference.")
with Cmplt ¶ 41 (same). Accordingly, plaintiffs' second cause
action is dismissed because it is redundant of their first cause
of action. See Fed.R.Civ.P. 12(f) (court may strike from any
pleading any "redundant, immaterial, impertinent, or scandalous
matter"); see also Aramony v. United Way of America,
949 F. Supp. 1080, 1084 (S.D.N.Y. 1996) ("[P]laintiff may not plead
the same claim more than once.").
C. Conspiracy to Breach Fiduciary Duty
It is well settled under New York law that there is no
substantive tort of conspiracy. See Goldstein v. Siegel,
19 A.D.2d 489, 244 N.Y.S.2d 378, 382 (1st Dep't 1963). In order to
state a claim for conspiracy, therefore, there must be
allegations of an independent actionable tort. See Guthartz v.
City of New York, 84 A.D.2d 707, 443 N.Y.S.2d 841, 842 (1st
Dep't 1981). The elements for inducing or participating in a
breach of fiduciary duty are: (1) a breach by a fiduciary of
obligations to another, (2) that the defendant knowingly induced
or participated in the breach, and (3) that the plaintiff
suffered damages as a result of the breach. See Whitney v.
Citibank, N.A., 782 F.2d 1106, 1115 (2d Cir. 1986).
Comcast argues that it cannot be held liable for conspiracy to
breach fiduciary duty because Villares did not owe plaintiffs a
fiduciary duty in the first place. It is true that "`[a]
conventional business relationship, without more, does not
become a fiduciary relationship by mere allegation.'" Compania
Sud-Americana de Vapores, S.A. v. IBJ Schroder Bank & Trust
Co., 785 F. Supp. 411, 425 (S.D.N.Y. 1992) (quoting Oursler v.
Women's Interart Cent., Inc., 170 A.D.2d 407, 566 N.Y.S.2d 295,
297 (1st Dep't 1991)) (emphasis added). Moreover, "where parties
deal at arms length in a commercial transaction, no relation of
confidence or trust sufficient to find the existence of a
fiduciary relationship will arise absent extraordinary
circumstances." Id. (citation omitted).
To come within this rule, Comcast characterizes the Agreement
between plaintiffs and Villares as a "finder's fee agreement."
This characterization, however, is not a foregone conclusion.
Perhaps the Agreement in issue should more properly be
characterized as a "co-venturer agreement."*fn8 If that were
the case, Villares and plaintiffs, as joint venturers, would
"owe each other a duty of `finest loyalty' and honesty."
Gramercy Equities Corp. v. Dumont, 72 N.Y.2d 560, 534 N.Y.S.2d 908,
912, 531 N.E.2d 629 (1988) (quoting Meinhard v. Salmon,
249 N.Y. 458, 463-64, 164 N.E. 545 (1928)). I need not decide
this issue as Villares appeared to owe plaintiffs a fiduciary
duty, but for an entirely different reason.
Plaintiffs have alleged that they placed a special trust and
confidence in Villares to negotiate on their behalf. See Cmplt
¶ 17. This was done after Comcast demanded to negotiate with
only one party. By entrusting Villares with this position,
plaintiffs became completely dependent on him to negotiate on
their behalf in good faith. Villares accepted this position
without condition. Accordingly, Villares' position as the sole
representative of plaintiffs created a fiduciary relationship
between them regardless of whether their Agreement is labeled a
finder's fee or co-venturer agreement.
Having satisfied the underlying tort element for conspiracy to
breach fiduciary duty, I turn to Comcast's argument that
plaintiffs' conspiracy to breach fiduciary duty claim is
duplicative of their breach of fiduciary duty claim and should
be dismissed on this ground. Comcast relies on Ferber v.
Ehrlich, 93 Civ. 818, 1994 WL 132168, at *9 (S.D.N.Y. Apr. 14,
1994), where the court held that when "[n]o facts are alleged
that distinguish the conspiracy to breach [defendant A's]
fiduciary duty from the separate claim that [defendant A]
breached his fiduciary duty to plaintiff . . . [t]he conspiracy
claim fails to state a claim upon which relief can be granted."
Without opining on whether this holding is correct, I note that
here plaintiffs did allege facts that distinguish the conspiracy
claim from the underlying breach. Specifically, plaintiffs
allege that "Comcast was fully informed of the above-described
relationship between Plaintiffs, Villares and Gonin, and the
fact that Villares was negotiating on behalf of himself, Gonin
Plaintiffs." Cmplt ¶ 58. Plaintiffs have therefore properly pled
a cause of action against Villares for his breach of fiduciary
duty and a separate cause of action against Comcast for its role
in inducing Villares' breach.*fn9 Consequently, Comcast's
motion to dismiss this claim is denied.
For the reasons stated above, Comcast's motion for summary
judgment relating to the equitable tolling of the statute of
limitations is denied. Also denied are Comcast's motions to
dismiss plaintiffs' tortious interference with contract claim
and conspiracy to breach fiduciary duty claim. Comcast's motion
to dismiss plaintiffs' tortious interference with business
relations is granted.