DESIGN STRATEGY CORP v. CITIBANK (1998)

Order, Supreme Court, New York County (Emily Goodman, J.), entered on or about September 16, 1997, which, in an action by plaintiff computer consultant placement company against defendants computer consultant placement company and computer consultant for tortious interference with contract or prospective contractual relations, denied plaintiff's motion to amend the complaint, and granted defendants' cross motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Assuming in plaintiff's favor that an issue of fact exists as to whether it had an agreement with the client to supply defendant consultant for $885 a day, it is an established fact that the consultant never agreed to work for plaintiff at the $40 an hour rate it offered her, and, as the IAS court noted, she had an absolute right not to accept plaintiff's offer of employment and to discontinue whatever business relationship she had with it (see, Weiner v. McGraw-Hill, 57 N.Y.2d 458, 463, 457 N.Y.S.2d 193, 443 N.E.2d 441;  Locker v. American Tobacco Co., 195 N.Y. 565, 88 N.E. 289).   Nor did plaintiff offer any admissible evidence that the consultant had an employment agreement with any of its affiliates or associates.   Without such an employment agreement, plaintiff's performance of its alleged agreement with the client would have been an impossibility, precluding any claim of tortious interference absent proof of culpable conduct (see, Guard-Life Corp. v. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 191-192, 428 N.Y.S.2d 628, 406 N.E.2d 445), not shown here.   At best, all that is shown is that plaintiff arranged an interview between the client and the consultant, that plaintiff and the consultant were then unable to reach agreement on her rate of pay, and that the consultant then decided to become the employee of defendant placement company, who offered her higher pay and the client a lower fee.   Plaintiff's proposed causes of action against defendant placement company's principal and successor are legally insufficient (see, Wieder v. Skala, 168 A.D.2d 355, 563 N.Y.S.2d 76).

MEMORANDUM DECISION.