        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1322
CA 13-01038
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, AND WHALEN, JJ.


MICHAEL J. DIFABIO, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JAMES M. JORDAN, DEFENDANT-APPELLANT.


COUCH, WHITE, LLP, ALBANY (JOEL M. HOWARD, III, OF COUNSEL), FOR
DEFENDANT-APPELLANT.

O’HARA, O’CONNELL & CIOTOLI, FAYETTEVILLE (STEPHEN CIOTOLI OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Oswego County (James
W. McCarthy, J.), entered March 19, 2013. The order, among other
things, denied the motion of defendant for summary judgment dismissing
the amended complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion in part and
dismissing the second cause of action and as modified the order is
affirmed without costs.

     Memorandum: In this action seeking damages for defamation and
tortious interference with contractual relations, defendant appeals
from an order denying his motion for summary judgment dismissing the
amended complaint. Contrary to defendant’s contention, Supreme Court
properly denied that part of his motion seeking summary judgment on
the first cause of action, for defamation. In this action involving a
public figure, defendant’s burden in support of the motion with
respect to the defamation cause of action “is not . . . to prove as a
matter of law that [he] did not publish with actual malice, but
[instead is] to point to deficiencies in the record that will prevent
plaintiff from proving that fact by clear and convincing evidence”
(Kipper v NYP Holdings Co., Inc., 12 NY3d 348, 354; see Humane League
of Phila., Inc. v Berman & Co., 108 AD3d 417, 418). A defendant
seeking summary judgment dismissing a defamation cause of action bears
the initial “burden of demonstrating that plaintiff could not show by
clear and convincing evidence that he made the challenged statements
with actual malice” (Farber v Jefferys, 103 AD3d 514, 515, lv denied
21 NY3d 858). Here, defendant failed to meet that burden and, in any
event, plaintiff raised a triable issue of fact whether defendant
acted with actual malice, “ ‘that is, with knowledge that it was false
or with reckless disregard of whether it was false or not’ ” (Freeman
v Johnston, 84 NY2d 52, 56, cert denied 513 US 1016, quoting New York
                                 -2-                          1322
                                                         CA 13-01038

Times Co. v Sullivan, 376 US 254, 280).

     We agree with defendant, however, that the court erred in denying
his motion with respect to the second cause of action, for tortious
interference with contract. We therefore modify the order
accordingly. Indeed, plaintiff concedes that he cannot establish that
defendant’s conduct caused a breach of plaintiff’s employment
contract, as required to make out a prima facie case of tortious
interference with an existing contract (see generally Lama Holding Co.
v Smith Barney, 88 NY2d 413, 424; NBT Bancorp v Fleet/Norstar Fin.
Group, 87 NY2d 614, 620-621), as pleaded in the complaint. We reject
plaintiff’s contention that the court properly denied the motion with
respect to the second cause of action because he raised a triable
issue of fact with respect to an unpleaded “claim of tortious
interference with economic relations” (Carvel Corp. v Noonan, 3 NY3d
182, 190-191). In general, “[a] court should not consider the merits
of a new theory of recovery, raised for the first time in opposition
to a motion for summary judgment, that was not pleaded in the
complaint” (Mezger v Wyndham Homes, Inc., 81 AD3d 795, 796; see Ostrov
v Rozbruch, 91 AD3d 147, 154). In any event, even assuming, arguendo,
that a court may deny a defendant’s summary judgment motion based upon
an unpleaded claim or cause of action where there is no surprise to
the moving party and the evidence submitted in opposition to the
motion raises a triable issue as to such a claim (see David D. Siegel,
Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR
C3212:11), we conclude that plaintiff failed to raise a triable issue
of fact with respect to that unpleaded claim.

     We have considered the parties’ remaining contentions and
conclude that they are without merit.




Entered:   January 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
