Opinion
Argued March 26, 1979
Decided May 3, 1979
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, MARTIN B. STECHER, J.
Clarence S. Barasch and Lionel A. Barasch for appellant.
Charles G. Moerdler, Burton N. Lipshie and Curtis C. Mechling for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
As noted by the Appellate Division: "The act of the defendant in bringing the suit was not unlawful and the defendant's desire to so dispose of his property to his own advantage not being inherently malicious, fraudulent or motivated by a desire to damage the plaintiff, he thus had a proper purpose to serve." Indeed the complaint alleges that 400 Park Avenue Company commenced the "action against the defendant and Banco * * * with the purpose and intent of preventing the execution of the sublease between Irving and Banco so as to enable the defendant 400 Park to obtain a more favorable direct lease with another tenant." Since the plaintiff has failed to allege that the suit was motivated by malicious rather than bona fide economic considerations, the complaint was properly dismissed for failure to state a cause of action (cf. Reinforce, Inc. v Birney, 308 N.Y. 164, 169).
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER and FUCHSBERG concur in memorandum.
Order affirmed.