Opinion
11462 11462A Index 650541/18
05-07-2020
Martin TREPEL, DO, Plaintiff–Appellant, v. Gregg HODGINS, et al., Defendants–Respondents.
Kreindler & Kreindler LLP, New York (Andrew J. Maloney, III of counsel), for appellant. Hinshaw & Culbertson LLP, New York (Edward K. Lenci of counsel), for Gregg Hodgins and Arizona Board of Regents, respondents. Valerie Cross Dorn, Ithaca (Valerie Cross Dorn of counsel), for Sturt Manning and Cornell University Board of Trustees, respondents.
Kreindler & Kreindler LLP, New York (Andrew J. Maloney, III of counsel), for appellant.
Hinshaw & Culbertson LLP, New York (Edward K. Lenci of counsel), for Gregg Hodgins and Arizona Board of Regents, respondents.
Valerie Cross Dorn, Ithaca (Valerie Cross Dorn of counsel), for Sturt Manning and Cornell University Board of Trustees, respondents.
Manzanet–Daniels, J.P., Mazzarelli, Gesmer, Moulton, JJ.
Orders, Supreme Court, New York County (Charles E. Ramos, J.), entered October 15, 2018, which granted defendants' motions to dismiss the complaint as against them, unanimously affirmed, without costs.
The court lacks subject matter jurisdiction over defendants Arizona Board of Regents, an agency of the State of Arizona, and Hodgins, an employee of the agency ( Franchise Tax Bd. of California v. Hyatt, ––– U.S. ––––, 139 S. Ct. 1485, 203 L.Ed.2d 768 [2019] ). Contrary to plaintiff's apparent contention, Ariz Rev Stat Ann § 12–820.05(A), which governs tort actions against public entities or employees, is not relevant to the breach of contract claim. As to the tort claims, plaintiff failed to show that Arizona's rules of tort immunity as developed at common law and as established under its statutes and constitution are different from the rules enunciated in Hyatt.
The complaint fails to state a cause of action against defendants Manning and Cornell University Board of Trustees (the New York defendants). The tortious interference with contract claim does not allege an intentional procurement of a breach (see Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 424, 646 N.Y.S.2d 76, 668 N.E.2d 1370 [1996] ). The fraud claim does not allege that plaintiff relied on allegedly false statements in Manning's analysis (see Unique Goals Intl., Ltd. v. Finskiy, 178 A.D.3d 626, 627, 116 N.Y.S.3d 223 [1st Dept. 2019] ). The trade libel claim, which plaintiff acknowledges is a claim for "product disparagement," does not allege actual malice (see Charles Atlas, Ltd. v. Time–Life Books, Inc., 570 F. Supp. 150, 154 [S.D. N.Y.1983] ). The tortious interference with prospective business relations claim does not allege that the New York defendants acted solely out of malice or employed wrongful means or that a contract would have been entered into with any third party "but for" their conduct, and it does not identify any such third party (see American Preferred Prescription v. Health Mgt., 252 A.D.2d 414, 418, 678 N.Y.S.2d 1 [1st Dept. 1998] ; Carvel Corp. v. Noonan, 3 N.Y.3d 182, 192, 785 N.Y.S.2d 359, 818 N.E.2d 1100 [2004] ). We have considered plaintiff's remaining arguments and find them unavailing.