DeMICCO BROS INC v. Time Warner Cable, Defendant. (2008)

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered May 25, 2006, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment as to liability for prima facie tort, unanimously reversed, on the law, without costs, and the motion denied.

The court improperly inferred disinterested malevolence, as a matter of law, from defendants' alleged breach of their common-law duty to remove the overhead wires that plaintiff claims were interfering with its public works contract with the City of New York. Defendants' proffered justification for their failure to remove the subject wires, i.e., that in numerous locations plaintiff's work had been completed before defendants received the City's orders directing them to relocate the wires, raised a triable issue whether the failure to remove the wires was motivated solely by a desire to harm plaintiff (see Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 333, 464 N.Y.S.2d 712, 451 N.E.2d 459 [1983];  L/M Ninety CM Corp. v. 2431 Broadway Realty Co., 170 A.D.2d 373, 566 N.Y.S.2d 277 [1991] ).