State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 23, 2014 517725 

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ULLMANGLASS et al.,

AppellantsRespondents,

v MEMORANDUM AND ORDER

ONEIDA, LTD., et al.,

RespondentsAppellants.

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Calendar Date: September 3, 2014

Before: Peters, P.J., Lahtinen, Garry, Rose and Clark, JJ.

__________

Primmer Piper Eggleston & Cramer, PC, Burlington, Vermont,

(Gary L. Franklin of counsel), for appellants-respondents.

Bond Schoeneck & King, PLLC, Syracuse (Louis Orbach of

counsel), for respondents-appellants.

__________

Peters, P.J.

Cross appeals from an order of the Supreme Court (Cerio

Jr., J.), entered August 13, 2013 in Madison County, which

granted defendants' motion for summary judgment dismissing the

complaint.

Plaintiffs commenced this action against defendants

asserting various tort claims based upon defendants' alleged

interference with a consulting contract between plaintiff Norbert

Ullmann and Inn Crystal Vertriebsg MBH. More specifically,

plaintiffs alleged that defendants made disparaging and false

remarks about them to principals of Inn Crystal, which caused it

to cancel the consulting contract. Prior to answering,
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defendants moved to dismiss the complaint as barred by the

statute of limitations and for failure to state a cause of

action. Supreme Court partially granted the motion and dismissed

plaintiffs' cause of action for injurious falsehood and business

disparagement, but left intact plaintiffs' claims for tortious

interference with contractual relations and tortious interference

with prospective business relations. Upon appeal, this Court

affirmed (86 AD3d 827 [2011]). Defendants then moved for summary

judgment dismissing the remaining claims. Supreme Court, while

concluding that those claims were not time-barred by the

applicable statute of limitations (see CPLR 214 [4]), dismissed

them based upon a lack of causation between defendants' alleged

actions and the cancellation of the consulting contract as well

as the ending of plaintiffs' business relationship with Inn

Crystal. Plaintiffs appeal,1 and defendants cross-appeal.2

Causation is an essential element of a claim for tortious

interference with contractual relations. Such a cause of action

requires proof that, "but for" the defendants' conduct, the

plaintiff would not have breached its contract with a third party

(see DiFabio v Jordan, 113 AD3d 1109, 1110 [2014]; Hobler v

Hussain, 111 AD3d 1006, 1008 [2013]; Schmidt & Schmidt, Inc. v

Town of Charlton, 103 AD3d 1011, 1015 [2013]).

In opposition to defendants' motion for summary judgment,

plaintiffs submitted a letter – not previously disclosed during

1 At oral argument, plaintiffs withdrew their claim for

tortious interference with prospective business relations.

2 Defendants cross-appeal from that part of Supreme Court's

order that declined to dismiss the subject claims on statute of

limitations grounds. However, inasmuch as defendants were

granted summary judgment dismissing the complaint, they are not

aggrieved by the court's order and their cross appeal must,

therefore, be dismissed (see Parochial Bus Sys. v Board of Educ.

of City of N.Y., 60 NY2d 539, 544-545 [1983]; Ford v Rifenburg,

94 AD3d 1285, 1285 n 1 [2012]). Their statute of limitations

argument is, nonetheless, properly before us as an alternative

ground for affirmance (see id.).
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discovery – that was written by Ullmann to a principal at Inn

Crystal following their meeting concerning Inn Crystal's

notification that it was cancelling the consulting contract. In

the letter, Ullmann summarized the meeting and, although he

disputed the allegations concerning his poor relationship with

defendants, he readily acknowledged that Inn Crystal wished to

terminate the consulting contract because it could no longer

afford to pay Ullmann his commissions given the discounts that it

was providing to defendants. This letter established that,

regardless of whether defendants acted in such a manner as to

interfere with the consulting contract, the contract with Ullmann

was terminated for financial reasons (see DiFabio v Jordan, 113

AD3d at 1110; Hobler v Hussain, 111 AD3d at 1008; Schmidt &

Schmidt, Inc. v Town of Charlton, 103 AD3d at 1014-1015). Thus,

it cannot be shown that "but for" defendants' alleged

interference, plaintiffs' contractual relationship with Inn

Crystal would have continued (see id.; Snyder v Sony Music

Entertainment, 252 AD2d 294, 300 [1999]). We reject plaintiffs'

assertion that other correspondence in the record supports a

different conclusion or otherwise raises a triable issue as to

whether the financial harm incurred by plaintiffs was

attributable to defendants' purported conduct. Absent proof of

causation, plaintiffs' claim for tortious interference with

contract was properly dismissed. 

Finally, we are unpersuaded by plaintiffs' contention that

summary judgment should have been denied as premature. 

Plaintiffs have not demonstrated how further discovery would

yield evidence sufficient to defeat the motion, particularly

given the admission contained in Ullmann's letter (see Hobler v

Hussain, 111 AD3d at 1009; 2 N. St. Corp. v Getty Saugerties

Corp., 68 AD3d 1392, 1395-1396 [2009], lv denied 14 NY3d 706

[2010]; Mitchell v Atlas Copco N. Am., Inc., 307 AD2d 635, 636

[2003]). Moreover, plaintiffs had ample time and opportunity to

conduct additional discovery, including depositions, before this

motion was brought, and have not proffered an adequate excuse for

their failure to do so (see Meath v Mishrick, 68 NY2d 992,

994-995 [1986]; Calabrese Bakeries, Inc. v Rockland Bakery, Inc.,

102 AD3d 1033, 1035 [2013]; Steinborn v Himmel, 9 AD3d 531, 535

[2004]; Halliday v Norton Co., 265 AD2d 614, 617 [1999], lv

dismissed and denied 94 NY2d 894 [2000]; Younger v Spartan Chem.
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Co., 252 AD2d 265, 268 [1999]). 

In light of our determination, we need not address the

alternative ground for affirmance advanced by defendants. 

Lahtinen, Garry, Rose and Clark, JJ., concur.

ORDERED that the order is affirmed, without costs.

ORDERED that the cross appeal is dismissed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court