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• Title: Holmes Protection New York
• Author : Supreme Court of New York
• Release Date : January 09, 1992
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 61 KB

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Order, Supreme Court, New York County (Shirley Fingerhood, J.), entered October 1, 1990, which granted plaintiff's motion
for partial summary judgment dismissing defendant's counterclaims, and denied defendant's cross-motion for summary judgment
dismissing plaintiff's amended complaint, unanimously affirmed, without costs. Order of the same court and justice, entered
January 25, 1991, which granted in part, defendant's motion to renew and reargue and, upon renewal and reargument, adhered
to its determination of October 1, 1990, unanimously affirmed, without costs. The third and seventh counterclaims based on General Business Law § 349 were properly dismissed, there being no evidence
that plaintiff conducted any recurring deceptive business harmful to the public at large (see Azby Brokerage, Inc. v. Allstate
Insurance Company 681 F.Supp 1084) General Business Law § 349 was not adopted to address private commercial disputes not
of a recurring nature (see e.g. Rubin v. Telemet America, Inc. 698 F.Supp 447, 451 (SDNY 1986). The second and fifth counterclaims
for breach of the implied covenant of good faith and fair dealing are insufficient, since they do not allege that plaintiff
sought to prevent defendant's performance of the contracts or to withhold its benefits from defendant (see Collard v. Incorporated
Village of Flower Hill, 75 A.D.2d 631, affd 52 N.Y.2d 594). Indeed, it was defendant, not plaintiff, who terminated the agreements.
The fourth counterclaim for fraud was properly dismissed, there being neither allegations nor proof of reliance by defendant
on the allegedly fraudulent conduct (see, Channel Master Corporation v. Aluminum Limited Sales, Inc., 4 N.Y.2d 403). Finally,
there being no evidence that any of plaintiff's conduct arose from "malicious intention", the sixth counterclaim for prima
facie tort was also correctly dismissed (see, Azby Brokerage, Inc. v. Allstate Insurance Company supra). All of plaintiff's
actions could have only been motivated by business self-interest.

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