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April 29, 2002


The opinion of the court was delivered by: Marrero, District Judge.


On November 26, 2001 defendants filed a motion to dismiss plaintiffs' complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). On December 20, 2001, plaintiffs filed an opposition to the motion and a cross-motion for a stay on January 7, 2002, defendants filed a reply. On April 26, 2002, the Court heard oral argument on the matter. For the reasons set forth in the statement made by the Court on the record at the April 26, 2002 Hearing, a copy of which is attached hereto and incorporated herein, the Court grants defendants' motion and denies plaintiffs' cross-motion. Accordingly, it is hereby

ORDERED that defendants' motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), is GRANTED; and it is further

ORDERED that plaintiffs' cross-motion for a stay of defendants' collection of rents from the premises at issue in this case is DENIED.

The Clerk of the Court is directed to close this case.


Statement of the Court Regarding Defendant's Motion to Dismiss

Plaintiffs Michael Blanchard and Lew Markus, appearing pro se in this matter, filed this action invoking the Court's diversity jurisdiction. They allege that defendants engaged in tortious interference with certain five-year leases plaintiffs claim they entered into with the St. Stephens Bible College Realty Management Corp. ("St.Stephens") related to twelve apartment units in the premises located at 357 West 116th Street, New York, New York (the "Premises"). Defendant Sherri L. Eisenpress ("Eisenpress") is a member of the law firm of Shatzkin, Reiss & Eisenpress, which is also named as a defendant in this action. Eisenpress was appointed to be the temporary receiver of the Premises by Court Order in a foreclosure action brought in May, 2000 by the mortgagee, Chase Manhattan Mortgage Corporation, in new York State Supreme Court, New York County. Defendants Ray Clive and Clive Corporation are the management agents hired by Eisenpress to provide maintenance and collect rents from tenants of the Premises.

In carrying out her functions as receiver, Eisenpress served the tenants of the Premises with a Notice to Attorn, a copy of which was attached to the Complaint and therefore properly considered by this Court on a motion to dismiss. The notice directed the tenants to pay their rent to Eisenpress as receiver, through Clive, her agent. Plaintiffs claim that in so acting, Eisenpress and Clive failed to recognize plaintiffs' leasehold rights to the Premises and thereby induced the subtenants to breach their agreements to pay rent to plaintiff's.

Defendants move pursuant to Fed.R.Civ.P. 12(b)(6) for dismissal of the complaint for failure to state a claim upon which relief may be granted. Plaintiffs cross-moved for an order staying Eisenpress and Clive from collecting rents from or otherwise contacting tenants of the Premises. For the reasons discussed below, the Court grants the defendants' motion.

First, the Court finds that the plaintiffs' pleadings, are insufficient to set forth each of the material elements of a tortious interference action under New York law. Nor does the complaint suggest any other cognizable legal theory upon which the pleadings state a viable cause of action against Eisenpress or Clive.

A claim for tortious interference with contractual relations under New York law requires factual allegations sufficient to establish: (1) the existence of a valid contract between plaintiff and a third party; (2) defendant's knowledge of that contract; (3) defendants's intentionally procuring a breach of the contract; and (4) damages suffered by plaintiff. See Foster v. Churchill, 87 N.Y.2d 744, 642 N.Y.S.2d 583, 665 N.E.2d 153, 157 (1996)

St. Stephens is listed as a party given notice of the pendency of that foreclosure action. By the state court's Order Appointing Temporary Receiver in Foreclosure Action entered on April 23, 2001 and also listing St. Stephens as a defendant, all named and other interested parties were "enjoined and restrained from collecting the rents of [the Premises] and from interfering in any manner with the property or its possession." Chase Manhattan Bank Corp. v. St. Stephens, Index No. 00111756, (Sup.Ct., N.Y. County, ...

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