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`Plaintiffs,
`
`vs.
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`Index No. 655410/2016
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`--------------------------------------------------------------------x
`ANDEJO CORP. d/b/a SEAPORT WATCH CO.,
`:
`FULTON MARKET RETAIL FISH, INC. d/b/a
`:
`SIMPLY SEAFOOD, APPLE MAC & R. CORP. d/b/a :
`MACMENAMIN’S PUB, ROSLU CORP. d/b/a
`:
`BERGIN BEER & WINE GARDEN, LAKOUS INC.
`:
`d/b/a PIZZA ON THE PIER, AINOLAHPEK, INC.
`:
`d/b/a ATHENIAN EXPRESS, SEAPORT
`:
`NOVELTIES, GIFTS & NEWS, LTD. d/b/a
`:
`SEAPORT NEWS, RY-ALLIE CANDY CORP. d/b/a :
`NUTCRACKER SWEETS, WAXOLOGY, INC. d/b/a :
`WAXOLOGY, HOT DOGS DEL MAR INC. d/b/a
`:
`NATHAN’S FAMOUS, ANDREW HUESTIS d/b/a
`:
`THE NEW YORK SHELL SHOP, and VIEW OF THE :
`WORLD PRODUCTS LTD. d/b/a VIEW OF THE
`:
`WORLD
`:
`:
`:
`:
`:
`:
`:
`SOUTH STREET SEAPORT LP, SEAPORT
`:
`MARKETPLACE, LLC, DLA PIPER LLP (US),
`:
`DLA PIPER NY LLP, ROSENBERG FELDMAN
`SMITH LLP, EDWARD SHAPIRO, BOOTH STREET :
`:
`FOOD CORP. d/b/a YORKVILLE PACKING
`HOUSE, SALAD MANIA, INC. d/b/a SALAD
`:
`MANIA, THE HOWARD HUGHES CORP.,
`:
`GENERAL GROWTH PROPERTIES, and
`:
`:
`STEPHEN M. ROSENBERG
`:
`:
`Defendants.
`--------------------------------------------------------------------x
`DLA PIPER’S REPLY MEMORANDUM OF LAW
`IN FURTHER SUPPORT OF ITS MOTION TO DISMISS
`Thomas A. Brown II
`Cassandra Beckman Widay
`Morea Schwartz Bradham Friedman & Brown LLP
`444 Madison Avenue, 4th Floor
`New York, New York 10022
`(212) 695-8050
`Attorneys for Defendants DLA Piper LLP (US)
`and DLA Piper NY LLP
`
`The Hon. Shlomo S. Hagler
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`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES .......................................................................................................... ii
`
`PRELIMINARY STATEMENT .................................................................................................... 1
`
`ARGUMENT .................................................................................................................................. 4
`
`I. The Claim Against DLA Piper Should Be
`Dismissed on Statute of Limitations Grounds. ................................................................ 4
`
`A. Any Claim Based on the 2005 and 2008 Shapiro Settlements Is Untimely. .... 4
`
`B. Any Claim Based on the 2013 Shapiro Settlement Is Untimely. ...................... 5
`
`C. The Tenants’ Equitable Estoppel Argument is Invalid as to DLA Piper. ......... 7
`
`II. The Claim Against DLA Piper Should Be
`Dismissed on Counsel-Immunity Grounds. ..................................................................... 9
`
`III. The Claim Against DLA Piper Should Be
`Dismissed Based on Documentary Evidence. ............................................................... 10
`
`IV. The Amended Complaint Against DLA Piper Should Be
`Dismissed Because it Fails to State a Cause of Action. ................................................. 11
`
`CONCLUSION ............................................................................................................................. 12
`
`
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`Cases
`
`TABLE OF AUTHORITIES
`
`Abrams v. Pecile,
`84 A.D.3d 618 (1st Dep’t 2011) ....................................................................................9, 10
`
`Am. Fed. Grp., Ltd. v. Edelman,
`282 A.D.2d 279 (1st Dep’t 2001) ........................................................................................5
`
`Art Capital Grp., LLC v. Neuhaus,
`70 A.D.3d 605 (1st Dep’t 2010) ........................................................................................10
`
`Burrowes v. Combs,
`25 A.D.3d 370 (1st Dep’t 2006) ........................................................................................12
`
`Duffy v. Horton Mem’l Hosp.,
`66 N.Y.2d 473 (1985) ..........................................................................................................4
`
`Kaufman v. Cohen,
`307 A.D.2d 113 (1st Dep’t 2003) ........................................................................................9
`
`Lama Holding Co. v. Smith Barney Inc.,
`88 N.Y.2d 413 (1996) ........................................................................................................11
`
`IDT Corp. v. Morgan Stanley Dean Witter & Co.,
`12 N.Y.3d 132 (2009) ......................................................................................................4, 5
`
`Jack L. Inselman & Co. v. FNB Fin. Co.,
`41 N.Y.2d 1078 (1977) ......................................................................................................10
`
`Jaffe v. Paramount Commc’ns Inc.,
`222 A.D.2d 17 (1st Dep’t 1996) ........................................................................................10
`
`Pursuit Inv. Mgmt. LLC v. Alpha Beta Capital Partners, L.P.,
`127 A.D.3d 580 (1st Dep’t 2015) ............................................................................9, 10, 12
`
`Purvi Enters., LLC v. City of N.Y.,
`62 A.D.3d 508 (1st Dep’t 2009) ..........................................................................................9
`
`Shea v. Hambros PLC,
`244 A.D.2d 39 (1st Dep’t 1998) ........................................................................................11
`
`Ross v. Louise Wise Servs., Inc.,
`8 N.Y.3d 478 (2007) ............................................................................................................8
`
`Wilhelmina Models, Inc. v. Fleisher,
`19 A.D.3d 267 (1st Dep’t 2005) ..........................................................................................6
`
`Zumpano v. Quinn,
`6 N.Y.3d 666 (2006) ............................................................................................................8
`ii
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`Statutes and Rules
`
`CPLR § 213(8) .................................................................................................................................5
`
`CPLR § 214(4) .............................................................................................................................4, 5
`
`CPLR § 3211(a)(1) ........................................................................................................................10
`
`CPLR § 3211(a)(5) ..........................................................................................................................4
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`CPLR § 3211(a)(7) ........................................................................................................................11
`
`
`
`
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`Defendants DLA Piper LLP (US) and DLA Piper NY LLP (collectively, “DLA Piper”)
`
`respectfully submit this reply memorandum of law in further support of their motion to dismiss.
`
`The motion seeks dismissal of the seventh and only cause of action directed at DLA Piper in the
`
`amended complaint filed by Plaintiffs, which are former tenants of the South Street Seaport
`
`(collectively, the “Tenants”).
`
`DLA Piper adopts and incorporates by reference the arguments set forth in the opening and
`
`reply briefs of its clients and Co-Defendants, South Street Seaport LP, Seaport Marketplace LLC,
`
`The Howard Hughes Corporation, and General Growth Properties (collectively, the “Seaport
`
`Defendants”).
`
`PRELIMINARY STATEMENT
`
`The Tenants are trying to ensnare DLA Piper in a case in which it does not belong.
`
`DLA Piper’s opening brief demonstrated that the Tenants’ only claim against the firm, for tortious
`
`interference with a contract, should be dismissed for numerous independent reasons. In response,
`
`the Tenants filed self-serving affidavits and affirmations from six different people in an effort to
`
`resuscitate their claims generally, but those papers largely neglect DLA Piper and ignore its
`
`arguments for dismissal.1 Because the Tenants’ papers fail to distinguish controlling precedent or
`
`refute documentary evidence, they confirm the Court should dismiss DLA Piper from this action.
`
`First, the Tenants improperly ask this Court to disregard the applicable statute of limitations
`
`for a tortious interference with contract claim. Under New York law, any such claim is time-
`
`barred after three years. The trio of settlements purportedly causing a contractual breach here
`
`occurred: (1) in 2005, (2) in 2008, and (3) on July 3, 2013. The Tenants filed suit challenging
`
`these settlements more than three years later, on October 11, 2016. In an attempt to avoid
`
`dismissal, the Tenants maintain that they learned of the first two settlements during 2016, and that
`
`
`
`1 Similarly, the Tenants’ 46 page, 250 paragraph amended complaint focused on the other
`Defendants. There are virtually no allegations that are specific to DLA Piper.
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`they should be able to avail themselves of a tvvo—year “discovery 1ule.
`
`The discoveiy rule,
`
`73
`
`however, does not apply to toflious interference claims. DLA Piper previously cited to clear
`
`auth01ity for this ve1y principle—which the Tenants do not even attempt to rebut. As for the third
`
`settlement, the Tenants incorrectly contend that it was not finalized and effective on July 3, 2013.
`
`The face of the settlement agreement, among other things, refutes the Tenants’ arglunent.2 As a
`
`broad final measure, the Tenants appear to assert that all Defendants are equitably estopped from
`
`invoking the statute of limitations. As to DLA Piper, that assertion is legally Imsuppofiable. The
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`statute of limitations is a complete defense to the tortious interference claim against DLA Piper,
`
`which should be dismissed.
`
`Second, the Tenants do not and cannot offer any intelligible reason for avoiding the counsel
`
`immunity doctrine. This doctrine is well-established in New York, and it generally insulates
`
`c01u1sel from any liability to disgruntled non-clients. It protects DLA Piper from the Tenants here.
`
`Tellingly, even though DLA Piper’s opening brief discussed case law on the counsel immunity
`
`doctrine, the Tenants make no effort to distinguish that law or to cite contrary authority. The
`
`Tenants posit that dismissing DLA Piper on this basis would be premature, but there is no such
`
`exception to the c01msel immunity doctrine, and courts consistently rely upon it on at the motion
`
`to dismiss stage. The Tenants next offer that if DLA Piper breaches the attomey—client privilege,
`
`the Tenants will voluntarily “stipulate to discontinue the action against [DLA] Piper.” That
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`suggestion is preposterous. The c01msel innnimity doctrine is all DLA Piper needs to be released
`
`from this case.
`
`
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`Third, documentary evidence confirms there was no contractual breach that could give rise
`
`to the Tenants’ claim against DLA Piper for tortious interference. The contract on which the
`
`Tenants predicate their claim was dated August 31, 2004, and it purportedly required signatories
`
`to share the value of any settlement obtained from DLA Piper’s clients (the “Plaintiff Agreement”).
`
`But paragraph 6 of the Plaintiff Agreement expressly excludes any settlement involving “rent relief
`
`or a forgiveness of rent arrears” from the signatories’ internal sharing requirement. And the
`
`Tenants do not make factual allegations that any of the settlements in question involved a
`
`qualifying transfer of value. The Tenants resort to claiming they were unaware that paragraph 6’s
`
`rent-related exclusion appeared in the Plaintiff Agreement that they themselves signed and, equally
`
`incredibly, ask this Court to reform the Plaintiff Agreement by disregarding the exclusion.
`
`The Tenants should be held to the terms of the document that they signed. Moreover, the Tenants
`
`cite to no authority for the wild proposition that DLA Piper should be held liable for alleged
`
`interference with some materially different and revisionist version of the Plaintiff Agreement that
`
`was not even in existence when any of the settlements occurred. In sum, documentary evidence
`
`remains a firm ground for dismissing the tortious interference claim against DLA Piper.
`
`Fourth, the amended complaint fails to state any cause of action against DLA Piper.
`
`The Tenants do not and cannot allege that DLA Piper’s conduct relating to the settlements was
`
`without justification or was the proximate cause of any damages. Both elements are required to
`
`state a cause of action for tortious interference with a contract—as DLA Piper’s opening brief
`
`pointed out. In response, the Tenants do not contest that DLA Piper’s conduct was justified, and
`
`only make a fleeting and misguided argument that the inadequately pleaded element of proximate
`
`cause should be overlooked at this point in time. As against DLA Piper, the amended complaint
`
`should be dismissed.
`
`For all of the reasons stated here and in DLA Piper’s opening brief, the motion to dismiss
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`should be granted in its entirety and with prejudice.
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`ARGUMENT
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`The Tenants cannot overcome the deficiencies of their tortious interference claim against
`
`DLA Piper. That claim still should be dismissed for at least the following four reasons: (1) it is
`
`time-barred; (2) it is foreclosed under the counsel-immunity doctrine; (3) it is disproved by
`
`documentary evidence; and (4) it is not pleaded adequately. Each of these reasons independently
`
`provides this Court with sufficient grounds for dismissal.
`
`I.
`
`THE CLAIM AGAINST DLA PIPER SHOULD BE DISMISSED ON STATUTE OF
`LIMITATIONS GROUNDS.
`
`The Tenants’ claim against DLA Piper for tortious interference with a contract should be
`
`dismissed as untimely under CPLR § 3211(a)(5). Statutes of limitation are a legislative affirmation
`
`of the need to protect both individuals and “the judicial system from the burden of adjudicating
`
`stale and groundless claims.” Duffy v. Horton Mem’l Hosp., 66 N.Y.2d 473, 477 (1985). In New
`
`York, the statute of limitations is three years for any claim of tortious interference with a contract.
`
`E.g., IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132, 141 (2009); see also CPLR
`
`§ 214(4). This is a straightforward and clear basis for dismissal, and one which the Tenants cannot
`
`avoid.
`
`Any Claim Based on the 2005 and 2008 Shapiro Settlements Is Untimely.
`
`A.
`The Tenants’ tortious interference claim is based on three settlements involving
`
`DLA Piper’s clients—the 2005, 2008, and 2013 Shapiro Settlements.3 The first two Shapiro
`
`Settlements took place approximately eleven years and eight years before the Tenants commenced
`
`this action on October 11, 2016. (Amend. Compl. ¶ 78).4 Any tortious interference claim relating
`
`
`
`3 These Shapiro Settlements are defined and described more fully in DLA Piper’s opening brief.
`(See DLA Piper Mem. Supp. Mot. Dismiss 4–6, NYSCEF Doc. No. 212).
`4 All citations to “Amend. Compl.” are to the Tenants’ amended complaint in this action, which is
`attached as Exhibit A to the April 14, 2017 affirmation of attorney Cassandra Beckman Widay, Esq.,
`submitted in support of DLA Piper’s motion to dismiss. (NYSCEF Doc. No. 211).
`
`4
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`to those Shapiro Settlements is undeniably time-barred as they occurred far outside of the
`
`applicable three-year statute of limitations period. In an attempt to sidestep that result, the Tenants
`
`assert they were “in the dark” about the two settlements until 2016, and try to invoke a two-year
`
`discovery rule pursuant to CPLR § 213(8). (See Amend. Compl. ¶ 93; O’Kelly Opp. Aff. ¶ 6).5
`
`They cannot do so.
`
`The discovery rule of CPLR § 213(8) applies exclusively to fraud claims, and has zero
`
`applicability to the tortious interference claim that is being lodged against DLA Piper. The Court
`
`of Appeals has made it plain that the three-year limitations period of CPLR § 214(4) governs any
`
`claim for tortious interference with a contract. IDT Corp. v. Morgan Stanley Dean Witter & Co.,
`
`12 N.Y.3d 132, 141 (2009). And there simply is no such thing as a discovery rule for tortious
`
`interference claims, as the First Department has observed. See Am. Fed. Grp., Ltd. v. Edelman,
`
`282 A.D.2d 279, 279 (1st Dep’t 2001) (holding date of plaintiffs’ discovery of tortious interference
`
`was irrelevant). Although this same authority was previously cited in DLA Piper’s opening brief,
`
`the Tenants chose to ignore it. (Cf. DLA Piper Mem. Supp. Mot. Dismiss 7–9). The Tenants have
`
`therefore tacitly conceded that this portion of their tortious interference claim against DLA Piper
`
`is untimely and should be dismissed.
`
`Any Claim Based on the 2013 Shapiro Settlement Is Untimely.
`
`B.
`The 2013 Shapiro Settlement likewise occurred more than three years before the Tenants
`
`sued on October 11, 2016. The associated settlement agreement clearly shows that it was signed
`
`and effective on July 3, 2013. (See Strongosky Aff., Ex. F, at 1, 11).6 Without basis, the Tenants
`
`
`
`5 All citations to “O’Kelly Opp. Aff.” are to the May 5, 2017 affirmation of attorney John L.
`O’Kelly, Esq., submitted in opposition to DLA Piper’s motion to dismiss. (NYSCEF Doc. No. 276).
`6 All citations to “Strongosky Aff.” are to the April 14, 2017 affirmation of attorney Christopher
`M. Strongosky, Esq., submitted in support of the Seaport Defendants’ motion to dismiss. (NYSCEF Doc.
`No. 146).
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`disavow the handwritten date appearing on the first page of the settlement agreement—purely
`
`speculating that may not be the real finalization date. (See O’Kelly Opp. Aff. ¶ 21). Even though
`
`the documentary evidence is dispositive on its face alone, both signatories to the settlement
`
`agreement have laid this matter to rest by swearing under oath that they indeed signed the
`
`document on July 3, 2013. (Strongosky Aff., Ex. MM, ¶ 8; Riley Aff. ¶ 2)7; see also Wilhelmina
`
`Models, Inc. v. Fleisher, 19 A.D.3d 267, 269 (1st Dep’t 2005) (“Factual allegations presumed to
`
`be true on a motion [to dismiss] pursuant to CPLR 3211 may properly be negated by affidavits and
`
`documentary evidence.”).
`
`
`
`7 All references to “Riley Aff.” are to the April 13, 2017 affidavit of Peter Riley, submitted in
`support of the Seaport Defendants’ motion to dismiss. (NYSCEF Doc. No. 145).
`8 See supra note 2.
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`The Tenants next argue that the statute of limitations should be tolled because DLA Piper
`
`did not disclose all of the terms of the 2013 Shapiro Settlement to them in June 2013. (See O’Kelly
`
`Opp. Aff. ¶ 30). The Tenants do not identify any legal authority to support this argument, and it
`
`is unclear what possible duty DLA Piper could have been under to provide all of those settlement
`
`terms to the adversaries of its clients during ongoing litigation. Furthermore, the Court explicitly
`
`invited counsel for the Tenants to move to compel disclosure of the settlement agreement’s exact
`
`terms—if he believed there were valid grounds for doing so. (See Strongosky Aff., Ex. E,
`
`Tr. 697:3–18). Tenants’ counsel made no such motion. Instead, he waited more than three years
`
`and then filed this lawsuit.
`
`Lastly, the Tenants argue that the statute of limitations would not necessarily have begun
`
`running when the 2013 Shapiro Settlement was finalized on July 3, 2013. (See O’Kelly Opp. Aff.
`
`¶ 30). Citing to an inapposite insurance case from the Third Department, the Tenants contend their
`
`purported injury here would only have been incurred after a “reasonable time” elapsed without the
`
`value of the 2013 Shapiro Settlement having been shared. There is no basis for the Tenants’
`
`position. Their damages, if any, accrued on the settlement date. The Tenants are just making up
`
`this “reasonable time” criterion—which they do not tether to any controlling contract or precedent.
`
`Even if the Tenants did find some authority for their chosen language, they still ignore that 100
`
`days passed between July 3, 2013 and October 11, 2013. The Tenants do not endeavor to explain
`
`why 100 days would not constitute enough “reasonable time” to share any settlement value.
`
`Consequently, any tortious interference claim relating to the 2013 Shapiro Settlement should be
`
`dismissed as untimely.
`
`C.
`
`The Tenants’ Equitable Estoppel Argument is Invalid as to DLA Piper.
`
`For their final bid to avoid dismissal, the Tenants seemingly argue that all Defendants
`
`should be equitably estopped from raising the statute of limitations. (See O’Kelly Opp. Aff. ¶ 49).
`
`7
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`To the extent the Tenants are trying to invoke this “uncommon remedy” against DLA Piper,
`
`it should be given especially short shrift. Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 491
`
`(2007). The doctrine of equitable estoppel may only be applied if a defendant affirmatively
`
`induces a plaintiff to refrain from filing a timely action. Id. Put another way, this doctrine must
`
`be “triggered by some conduct on the part of the defendant after the initial wrongdoing; mere
`
`silence or failure to disclose the wrongdoing is insufficient.” Id. (emphasis added) (internal
`
`quotation marks omitted). Setting aside for the moment that DLA Piper’s involvement in the each
`
`of the 2005, 2008, and 2013 Shapiro Settlements could not amount to wrongdoing—there is
`
`absolutely no subsequent conduct alleged here that could trigger equitable estoppel.
`
`With respect to the 2005 and 2008 Shapiro Settlements, the Tenants’ amended complaint
`
`forecloses the equitable estoppel doctrine with rather exacting precision. The Tenants do not allege
`
`that DLA Piper delayed their filing of a claim through “any specific misrepresentation . . . or
`
`deceptive conduct.” Zumpano v. Quinn, 6 N.Y.3d 666, 675 (2006). Instead, the Tenants allege
`
`only that DLA Piper, as part of an amorphous collective of Defendants, “never advised” and “failed
`
`to notify” the Tenants about the 2005 and 2008 Shapiro Settlements. (Amend. Compl. ¶¶ 88–89).
`
`This is almost a verbatim recitation of what cannot qualify for the equitable estoppel doctrine.
`
`Ross, 8 N.Y.3d at 491.
`
`As for the 2013 Shapiro Settlement, the Tenants were indisputably aware of it before it was
`
`finalized, and requested to know its terms. (Amend. Compl. ¶ 103). Yet despite being invited in
`
`open court to pursue their request further, the Tenants elected not to do so. (See Strongosky Aff.,
`
`Ex. E, Tr. 697:3–18). In this manner, the Tenants are like other plaintiffs who were not able to use
`
`the equitable estoppel doctrine because they had “early awareness” of their putative claims and
`
`opted not to undertake any action in a timely fashion. Zumpano, 6 N.Y.3d at 675. If anyone
`
`inhibited the Tenants from timely bringing suit, it was themselves—and not DLA Piper.
`
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`Lastly it is worth noting that, in the single case upon which the Tenants rely in support of
`
`this argument, the First Department held that “equitable estoppel is inapplicable.” Kaufman v.
`
`Cohen, 307 A.D.2d 113, 122 (1st Dep’t 2003). This Court should make the same holding here.
`
`II.
`
`THE CLAIM AGAINST DLA PIPER SHOULD BE DISMISSED ON COUNSEL-
`IMMUNITY GROUNDS.
`
`The Tenants’ tortious interference claim against DLA Piper should be dismissed in
`
`accordance with the counsel immunity doctrine. In New York, this doctrine generally holds law
`
`firms immune from potential liability to non-clients “under the shield afforded attorneys in
`
`advising their clients.” Pursuit Inv. Mgmt. LLC v. Alpha Beta Capital Partners, L.P., 127 A.D.3d
`
`580, 581 (1st Dep’t 2015) (quoting Purvi Enters., LLC v. City of N.Y., 62 A.D.3d 508, 509
`
`(1st Dep’t 2009)) (internal quotation marks omitted). The counsel immunity doctrine protects law
`
`firms from litigious non-clients that are displeased at the conclusion of a deal or case. The only
`
`exception to this broad counsel-immunity doctrine exists where someone has acted in “fraud,
`
`collusion, malice or bad faith,” which the Tenants have not even tried to allege here—nor could
`
`they. Abrams v. Pecile, 84 A.D.3d 618, 619 (1st Dep’t 2011).
`
`In their opposition papers, the Tenants do not make any principled argument against the
`
`application of the counsel immunity doctrine. They do not discuss or distinguish the precedent
`
`DLA Piper cited. They do not even cite to any case law of their own. Rather, the Tenants make
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`an ineffective argument that dismissing DLA Piper on counsel-immunity grounds would be
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`“premature” at this stage. (See O’Kelly Suppl. Opp. Aff. ¶ 14).9 Apparently, the Tenants did not
`
`bother to familiarize themselves with DLA Piper’s cited precedent. If they had, the Tenants would
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`be well-aware that courts routinely deploy the counsel immunity doctrine at the motion to dismiss
`
`
`
`9 All citations to “O’Kelly Suppl. Opp. Aff.” are to the May 5, 2017 supplemental affirmation of
`attorney John L. O’Kelly, Esq., submitted in opposition to DLA Piper’s motion to dismiss. (NYSCEF Doc.
`No. 299).
`
`9
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`stage. E.g., Pursuit Inv. Mgmt. LLC, 127 A.D.3d at 581; Abrams, 84 A.D.3d at 619; Art Capital
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`Grp., LLC v. Neuhaus, 70 A.D.3d 605, 606 (1st Dep’t 2010). By operation of the counsel-
`
`immunity doctrine, DLA Piper cannot be held liable to the Tenants for tortious interference with
`
`a contract. The claim should be dismissed.
`
`III. THE CLAIM AGAINST DLA PIPER SHOULD BE DISMISSED BASED ON
`DOCUMENTARY EVIDENCE.
`
`The tortious interference claim against DLA Piper should also be dismissed under
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`CPLR § 3211(a)(1) because documentary evidence shows that the Tenants have not properly
`
`alleged any contractual breach. “[I]t is axiomatic that there must be a breach of the contract”
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`for the Tenants to sustain their cause of action for tortious interference with a contract. Jaffe v.
`
`Paramount Commc’ns Inc., 222 A.D.2d 17, 24 (1st Dep’t 1996) (quoting Jack L. Inselman & Co.
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`v. FNB Fin. Co., 41 N.Y.2d 1078, 1080 (1977)).
`
`Here, a juxtaposition of the Plaintiff Agreement and the amended complaint reveals that
`
`no contractual breach occurred. The sharing provision did not place an absolute bar on all
`
`settlements. Rather, the provision only required a tenant who obtained “a recovery payment, credit
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`or settlement, other than rent relief or a forgiveness of rent arrears” to share the proceeds with
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`other tenants. (Pl. Agrm’t ¶ 6).10 Because the Tenants cannot not make any non-speculative
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`factual allegations that a qualifying transfer of value occurred, they now profess they were unaware
`
`that the rent-related exclusion appeared in the Plaintiff Agreement that they signed. Equally
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`incredibly, the Tenants ask this Court to rewrite the Plaintiff Agreement and excise the exclusion.
`
`The Tenants should be held to the terms of the document that they signed. Moreover, the
`
`Tenants cite no authority for the wild proposition that DLA Piper should be held liable for any
`
`
`
`10 All citations to “Pl. Agrm’t” are to the Plaintiff Agreement, which is attached as Exhibit D to the
`Strongosky Affirmation. (NYSCEF Doc. No. 150).
`
`10
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`14 of 16
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`alleged interference with a materially different and revisionist version of the Plaintiff Agreement
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`that did not exist at the time of the settlements. The Tenants’ claim is overreaching and flatly
`
`contradicted by the documentary evidence, and it should be dismissed.
`
`IV.
`
`THE AMENDED COMPLAINT AGAINST DLA PIPER SHOULD BE DISMISSED
`BECAUSE IT FAILS TO STATE A CAUSE OF ACTION.
`
`The tortious interference claim against DLA Piper should further be dismissed under
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`CPLR § 3211(a)(7) because the Tenants’ pleading fails to state a cause of action. To plead the
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`elements of tortious interference with a contract, there must be factual allegations showing: (1) the
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`existence of a valid contract; (2) a defendant’s knowledge of that contract; (3) a defendant’s
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`intentional procurement of a contractual breach without justification; and (4) damages.
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`Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 424 (1996). Of course, with respect to
`
`any claim, “if sufficient factual allegations of even a single element are lacking, then the cause of
`
`action must be dismissed.” Shea v. Hambros PLC, 244 A.D.2d 39, 46 (1st Dep’t 1998).
`
`As DLA Piper established in its opening brief, the Tenants’ amended complaint is fatally
`
`flawed on the third element of justification. DLA Piper was completely justified in facilitating the
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`2005, 2008, and 2013 Shapiro Settlements on behalf of its clients. (See DLA Piper Mem. Supp.
`
`Mot. Dismiss 12). Any possible interference with the Plaintiff Agreement would merely have
`
`been incidental to the lawful and judicially-promoted goal of settling protracted disputes where
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`feasible. The Tenants chose not to address this element of justification in their opposition papers—
`
`perhaps recognizing that settlements are broadly favored as a matter of public policy in New York.
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`The amended complaint should be dismissed for this reason alone.
`
`Moreover, DLA Piper demonstrated the amended complaint does not allege that the firm’s
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`conduct relating to the settlements was the proximate cause of any damages. (See DLA Piper
`
`Mem. Supp. Mot. Dismiss 12–13). The lone cause of the Tenants’ professed damages here—
`
`11
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`15 of 16
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`assuming for the sake of argument that there were some—would have been a failure to share by
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`the settling tenants. Hinting at this deficiency, the Tenants’ opposition incorrectly contends that
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`the element of proximate causation may be addressed at a later point in the proceedings. (See
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`O’Kelly Suppl. Opp. Aff. ¶ 13). For DLA Piper, there should be no later point in the proceedings.
`
`The First Department frequently confirms that a failure to plead proximate cause should result in
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`dismissal. See, e.g., Pursuit Inv. Mgmt. LLC v. Alpha Beta Capital Partners, 127 A.D.3d 580, 581
`
`(1st Dep’t 2015); Burrowes v. Combs, 25 A.D.3d 370, 373 (1st Dep’t 2006). It follows that as
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`against DLA Piper, the amended complaint should be dismissed.
`
`CONCLUSION
`
`For all of the foregoing reasons, Defendants DLA Piper LLP (US) and DLA Piper NY LLP
`
`respectfully request that this Court: (1) grant their motion to dismiss the Tenants’ single cause of
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`
`
`action against them, with prejudice and without leave to replead; and (2) grant such other relief as
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`it deems just and proper.
`
`Dated: May 26, 2017
`
`New York, New York
`
`
`By:
`
`Respectfully Submitted,
`
`MOREA SCHWARTZ BRADHAM
`FRIEDMAN & BROWN LLP
`
`
`
` /s/ Thomas A. Brown II