         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1526
CA 10-00992
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND SCONIERS, JJ.


10 ELLICOTT SQUARE COURT CORPORATION, DOING
BUSINESS AS ELLICOTT DEVELOPMENT CO., LLC,
1097 GROUP, LLC, AND 4628 GROUP, INC.,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

VIOLET REALTY, INC., VIOLET REALTY, INC.,
DOING BUSINESS AS MAIN PLACE LIBERTY GROUP,
AND PATRICK HOTUNG, DEFENDANTS-RESPONDENTS.


MOSEY PERSICO, LLP, BUFFALO (JENNIFER C. PERSICO OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

THE KNOER GROUP, PLLC, BUFFALO (ROBERT E. KNOER OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Erie County (John M. Curran, J.), entered February 10, 2010.
The order and judgment granted the motion of defendants to dismiss the
complaint and for summary judgment.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.

     Memorandum: In this action to recover damages for, inter alia,
tortious interference with prospective economic advantage, plaintiffs
appeal from an order and judgment granting that part of defendants’
motion seeking to dismiss the complaint, as well as those parts of the
motion seeking summary judgment dismissing the second and sixth causes
of action.

     Contrary to plaintiffs’ contention, Supreme Court properly
granted that part of the motion seeking to dismiss the complaint.
When reviewing “a motion to dismiss pursuant to CPLR 3211, we must
accept as true the facts as alleged in the complaint and submissions
in opposition to the motion, accord plaintiffs the benefit of every
possible favorable inference and determine only whether the facts as
alleged fit within any cognizable legal theory” (Sokoloff v Harriman
Estates Dev. Corp., 96 NY2d 409, 414; see Leon v Martinez, 84 NY2d 83,
87-88). Applying that standard, we conclude that the court properly
granted the motion with respect to the first cause of action, alleging
tortious interference with prospective economic advantage. “Where, as
here, the alleged interference was with prospective contractual
                                 -2-                          1526
                                                         CA 10-00992

relationships, rather than existing contracts, ‘[the] plaintiff[s]
must show that the defendant[s] interfered with the plaintiff[s’]
business relationships either with the sole purpose of harming the
plaintiff[s] or by means that were unlawful or improper’ ” (Out of Box
Promotions, LLC v Koschitzki, 55 AD3d 575, 577; see Emergency
Enclosures, Inc. v National Fire Adj. Co., Inc., 68 AD3d 1658, 1660-
1661). Unlawful or improper means, sometimes referred to as wrongful
means, may include physical violence, fraud, misrepresentation, civil
suits, criminal prosecutions and economic pressure (see Guard-Life
Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183, 191).

     Here, plaintiffs alleged that defendants tortiously interfered
with their business relations by commencing four civil suits.
Contrary to plaintiffs’ contention, however, “civil suits and threats
thereof constitute ‘improper means’ only if such tactics are
frivolous” (Pagliaccio v Holborn Corp., 289 AD2d 85; see generally
Carvel Corp. v Noonan, 3 NY3d 182, 192), and that is not the case
here. Plaintiffs stipulated to a settlement of the first civil suit
and, although this Court affirmed the judgments in two of the civil
suits that, inter alia, dismissed the petitions, we nevertheless
concluded that the litigation was not frivolous (see Matter of Violet
Realty, Inc. v City of Buffalo Planning Bd., 20 AD3d 901, 904, lv
denied 5 NY3d 713). Further, plaintiffs failed to allege that the
remaining civil suit was frivolous.

     Plaintiffs also failed to allege that defendants acted solely to
harm plaintiffs. To the contrary, the complaint, as well as the
affidavits submitted by plaintiffs in opposition to defendants’ motion
(see Martino v Stolzman, 74 AD3d 1764, 1765-1766, appeal dismissed 15
NY3d 890), repeatedly allege that defendants were motivated by their
desire to acquire the subject properties for their own business
purposes (see Besicorp, Ltd. v Kahn, 290 AD2d 147, 150, lv denied 98
NY2d 601).

     Contrary to the further contention of plaintiffs, the court
properly granted that part of the motion seeking to dismiss as time-
barred the second cause of action, alleging tortious interference with
prospective economic advantage. It is well settled that a three-year
statute of limitations applies to such a cause of action (see Amaranth
LLC v J.P. Morgan Chase & Co., 71 AD3d 40, 48, lv dismissed in part
and denied in part 14 NY3d 736). The court concluded, based on a
document that they failed to include in the record on appeal, that
plaintiffs agreed that the second cause of action concerned their
attempts to acquire the property at 30 Court Street. Plaintiffs do
not dispute that they purchased that property more than three years
prior to the commencement of this action and thus that they created a
contractual relationship at that time. “Because plaintiff[s] and [the
seller of that property] had already entered into a contract,
plaintiff[s] failed to plead any prospective business relationship”
upon which the second cause of action may be based (Nicosia v Board of
Mgrs. of Weber House Condominium, 77 AD3d 455, 457).

     Plaintiffs contend that the court erred in granting those parts
                                 -3-                          1526
                                                         CA 10-00992

of the motion seeking to dismiss as time-barred the third through
fifth causes of action, for malicious prosecution, abuse of process
and prima facie tort, respectively, because the statute of limitations
did not begin to run with respect to those causes of action until the
Court of Appeals denied their motion for leave to appeal from the
judgment dismissing the last of the four civil suits commenced by
defendants. We reject that contention. A cause of action for
malicious prosecution is governed by a one-year statute of
limitations, which begins to run upon termination of the underlying
lawsuit (see CPLR 215 [3]; Syllman v Nissan, 18 AD3d 221; Dudick v
Gulyas, 277 AD2d 686, 688). A one-year statute of limitations also
governs a cause of action for abuse of process (see Benyo v Sikorjak,
50 AD3d 1074, 1077; Beninati v Nicotra, 239 AD2d 242), as well as a
cause of action for intentional prima facie tort (see Casa de Meadows
Inc. [Cayman Is.] v Zaman, 76 AD3d 917, 921; Yong Wen Mo v Gee Ming
Chan, 17 AD3d 356, 358). It is long settled that those causes of
action accrue “when plaintiff[s] first become[] entitled to maintain
the action[, ]i.e., when there is a determination favorable to
plaintiff[s], notwithstanding the pendency of an appeal” (Lombardo v
County of Nassau, 6 Misc 3d 836, 840; see also Marks v Townsend, 97 NY
590, 594-595; Reed Co. v International Container Corp., 43 F Supp 644,
645). Consequently, the causes of action for malicious prosecution,
abuse of process and prima facie tort accrued upon dismissal of the
underlying civil lawsuits, the last of which occurred more than one
year prior to the commencement of this action.

     Even assuming, arguendo, that a three-year statute of limitations
applies to the prima facie tort cause of action (see Barrett v Huff, 6
AD3d 1164, 1166; Stacom v Wunsch, 173 AD2d 401, lv denied 78 NY2d
859), we conclude that the court properly granted the motion with
respect thereto for failure to state a cause of action. To state a
cause of action for prima facie tort under the circumstances of this
case, the complaint must allege that defendants’ sole motivation for
the otherwise lawful conduct was “ ‘a disinterested malevolence to
injure plaintiff[s]’ ” (Emergency Enclosures, Inc., 68 AD3d at 1660;
see Great Am. Trucking Co. v Swiech, 267 AD2d 1068, 1069). Here,
however, the complaint and the affidavits submitted in opposition to
the motion repeatedly allege that defendants acted in their own
economic interest (see Niagara Mohawk Power Corp. v Testone, 272 AD2d
910, 911-912; Great Am. Trucking Co., 267 AD2d at 1069).

     Inasmuch as we conclude that the court properly granted that part
of defendants’ motion seeking to dismiss the complaint, the
contentions of the parties concerning that part of the motion seeking
summary judgment dismissing the second and sixth causes of action are
moot. We have considered plaintiffs’ remaining contentions and
conclude that they are without merit.




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
