relationship with Albany and Corinthian, as discussed above.
C. Tortious Interference with Prospective Economic Advantage
The elements of a cause of action for tortious interference with
prospective economic advantage are: (1) existence of a profitable business
relationship; (2) the tortfeasor's interference with that relationship;
(3) the tortfeasor's use of dishonest, unfair, improper, or wrongful
means; and (4) damage to the business relationship. Waste Services, Inc.
v. Jamaica Ash and Rubbish Removal Co., 262 A.D.2d 401, 691 N.Y.S.2d 150
(2d Dep't 1999); Fonar Corp. v. Magnetic Resonance Plus, Inc.,
957 F. Supp. 477 (S.D.N.Y. 1997)
A plaintiff must demonstrate that the defendant's interference with its
prospective business relations was accomplished by "wrongful means" or
that defendant acted for the sole purpose of harming the plaintiff.
Snyder, 684 N.Y.S.2d at 239. "Wrongful means" includes physical
violence, fraud, misrepresentation, civil suits, criminal prosecutions
and economic pressure. Id. (citing Guard-Life v. S. Parker Hardware Mfg.
Corp., 428 N.Y.S.2d 628).
The only evidence of wrongful means offered by the plaintiff is the
alleged false statement in the two letters from Kaufmann. However, it has
already been concluded above that Kaufmann has established as a matter of
law that no injurious false statement occurred. As PFC has failed to
submit evidence of some other tortious conduct by Kaufmann, the wrongful
means requirement has not been met.
D. Deceptive Trade Practices
Although Kaufmann lists "Deceptive Trade Practices" as part of the
counterclaim that it opposes, Kaufmann nowhere addresses the subject. In
its memorandum of law in support of its motion to dismiss the
counterclaims, Kaufmann makes a general statement that PFC's "hodge-podge
of causes of actions" in the second counterclaim boil down to "theories
of tortious interference with contract and tortious interference with
prospective economic advantage." Mem. at 11. However, there does appear to
be a cause of action for deceptive trade practices under New York law
separate from those addressed in Kaufmann's motion to dismiss. Its
elements are that (1) the alleged practice was misleading in a material
respect; and (2) the claimant was injured. Steinmetz v. Toyota Motor
Credit Corp., 963 F. Supp. 1294, 1306 (E.D.N.Y. 1997). In the absence of
any argument on the topic by Kaufmann, therefore, that portion of the
counterclaim is not dismissed.
V. Leave to Amend
Fed. R. Civ. P. 15(a) requires that "leave [to amend] shall be freely
given when justice so requires." Foman v. Davis, 371 U.S. 178, 182
(1962). When a motion to dismiss is granted, "the usual practice is to
grant leave to amend the complaint." 2A Moore & Lucas, Moore's Federal
Practice ¶ 12.14 at 12-99 (2d ed. 1989); see also Luce v. Edelstein,
802 E.2d 49, 56 (2d Cir. 1986) (same rule for complaints dismissed under
Rule 9(b)). Although the decision whether to grant Leave to amend is
within the discretion of the district court, refusal to grant leave must
be based on a valid ground. Foman, 371 U.S. at 182. PFC may amend its
counterclaim to address the deficiencies listed above.
For the following reasons, the first counterclaim and the portions of
counterclaim alleging tortious interference with contract,
tortious interference with economic relations and tortious interference
with prospective economic advantage are dismissed. The portion of the
second counterclaim alleging deceptive trade practices is not dismissed.
PFC has leave to amend the counterclaims.
It is so ordered.