LLP, New York (William B. Kerr of counsel), for appellants.
Schulman & Charish LLP, New York (Eli Schulman of
counsel), for Insightec, Ltd., respondent.
Kreisberg & Maitland, LLP, New York (Gabriel Mendelberg
of counsel), for Kriesberg & Maitland, LLP, respondent.
Renwick, J.P., Kapnick, Mazzarelli, Webber, JJ.
Supreme Court, New York County (Manuel J. Mendez, J.),
entered April 4, 2017, which, to the extent appealed from as
limited by the briefs, granted defendant InSightec,
Ltd.'s motion to dismiss the cause of action for tortious
interference with contract, and granted defendant Kreisberg
& Maitland, LLP's (K & M) motion to dismiss the
cause of action for breach of contract, unanimously affirmed,
court applied the correct standard in deciding the motions
under CPLR 3211(a)(7), i.e., presuming the facts alleged are
true and according the plaintiff every favorable inference,
unless the allegations actually constitute legal conclusions
or are inherently incredible or unequivocally contradicted by
documentary evidence (Leder v Spiegel, 31 A.D.3d 266');">31 A.D.3d 266
[1st Dept 2006], aff'd 9 N.Y.3d 836');">9 N.Y.3d 836 ,
cert denied sub nom Spiegel v Rowland, 552 U.S. 1257');">552 U.S. 1257
complaint fails to state a cause of action for interference
with contractual relations because it does not allege that
InSightec had knowledge of the contract it allegedly
interfered with or that it intentionally induced K & M to
breach the contract (e.g. Israel v Wood Dolson Co.,
1 N.Y.2d 116, 120 ; Hoag v Chancellor, Inc.,
246 A.D.2d 224');">246 A.D.2d 224 [1st Dept 1998]). Plaintiffs allege that
InSightec had "full knowledge of the Settlement
Agreement and its material terms" upon receipt of their
March 1, 2016 email referring to "non-public and
proprietary information" in InSightec's and
"its agents[']" possession, obtained "in
violation of a signed agreement and court Sealing
order." However, the email provides no information about
the "agreement" that protected the information or
the case in which the "court Sealing order" was
issued, other than "in the Supreme Court of the State of
New York." It says nothing about the parties to the
agreement, the date the agreement was executed, or the
purpose of the agreement. Thus, contrary to the allegations
in the complaint, the email contains no "material
terms." Moreover, it describes the allegedly
"illegally" obtained information in only the
vaguest of terms, i.e., information "including but not
limited to confidential information related to third parties,
non-public customer lists and records, financial information
and bank records, etc." Thus, plaintiffs failed to
allege facts that would show that InSightec knew about the
settlement agreement or could have been in a position to
induce K & M to breach its terms.
than in the most conclusory way, plaintiffs also failed to
allege any damages they incurred as a result of the
information being available to the public for the limited
time alleged much less the "but for" damages the
tort requires (see Pursuit Inv. Mgt. LLC v Alpha Beta
Capital Partners, L.P., 127 A.D.3d 580');">127 A.D.3d 580 [1st Dept 2015]).
breach of contract claim was correctly dismissed pursuant to
CPLR 3211(a)(7) because the settlement agreement was not a
contract pursuant to which K & M had any obligations to
plaintiffs. The agreement names as parties John Doe, LMV, LMV
USA, Ralph Klein, and Zeev Klein, and it is only John Doe and
the "remaining Parties" who are bound by the
non-disparagement clause of paragraph 9. Gabriel Mendelberg
signed the agreement on behalf of K & M as
"Attorneys for Plaintiff," just as plaintiffs'
firm signed as "Attorneys for LMV, LMV USA and
Kleins." Thus, K & M expressly acted on behalf of a
disclosed principal, namely, its client, John Doe, and
"will not be personally bound [absent] clear and
explicit evidence of [its] intention to substitute or
superadd [its] personal liability for, or to, that of [its]
principal" (Savoy Record Co. v Cardinal Export
Corp., 15 N.Y.2d 1, 4  [internal quotation marks
omitted]). When the parties intended to include attorneys in
the list of those bound or otherwise affected by the
agreement's terms, they did so explicitly; contrary to
plaintiffs' contention, they did not include attorneys in
paragraph 4 ("This Agreement shall be binding
complaint also fails to plead damages arising from the
alleged breach (see Fowler v American Lawyer Media,
306 A.D.2d 113');">306 A.D.2d 113 [1st Dept 2003]).
breach of contract claim also fails under CPLR 3211(a)(1),
another ground on which K & M moved to dismiss. The
settlement agreement definitively disproves plaintiffs'
claims (see Robinson v Robinson, 303 A.D.2d 234, 235
[1st Dept 2003]), and a revised pleading could not cure the
deficiency (Eaton Vance Mgt. v Wilmington Sav. Fund
Socy., FSB, 171 A.D.3d 626, 627 [1st Dept 2019]).
Moreover, absent a breach of contract by K & M,
plaintiffs cannot replead a ...