WINTERVIEW INC v. KARIN MODELS LLC (2002)

Judgment, Supreme Court, New York County (Stephen Crane, J.), entered July 10, 2000, after a nonjury trial, in favor of third-party defendants-respondents, Next, a partnership, Faith Kates, Joel Wilkenfeld, Giorgio San Ambrogio and Lorenzo Pedrini, dismissing the third-party complaint as against them, unanimously affirmed, with costs.

 The trial evidence, fairly considered, permitted the court, sitting as fact finder, fairly to conclude that third-party defendants-respondents did not induce Mr. Priano to breach his contract with third-party plaintiff.   A review of the testimony as a whole indicates that the court accorded the evidence its proper weight, and despite certain credibility problems, which the court noted, nonetheless properly found that third-party plaintiff failed to meet its burden of proving all of the elements of a cause of action for tortious interference with contract.   In this connection, the trial testimony, including testimony from third-party plaintiff's own witness, disclosed that third-party defendants did not precipitate Mr. Priano's departure from third-party plaintiff, but rather that Mr. Priano, seeking to relocate his business because of his dissatisfaction with his situation at third-party plaintiff, sought out third-party defendants.   Moreover, even if third-party defendants had induced Priano's departure from third-party plaintiff, the duly credited evidence persuasively supported the trial court's findings that third-party plaintiff's late payments to Mr. Priano's hair and make-up artists and limitations set by third-party plaintiff on Mr. Priano's bookings prevented Mr. Priano from doing the very work he was hired by third-party plaintiff to do (cf., Rockland Dev. Assocs. v. Richlou Auto Body, Inc., 173 A.D.2d 690, 570 N.Y.S.2d 343), and thus that third-party plaintiff should not be permitted to recover for inducing the breach of the contract whose performance it had by its own conduct already frustrated.

 Third-party plaintiff's jury demand was properly struck in view of its joinder of legal and equitable causes of action based upon the same transaction (see, A.J. Fritschy Corp. v. Chase Manhattan Bank, 36 A.D.2d 600, 318 N.Y.S.2d 369).

We have considered third-party plaintiff's remaining arguments and find them unavailing.