SNC LTD v. KAMINE ENGINEERING AND MECHANICAL CONTRACTING CO INC (1997)

Order, Supreme Court, New York County (Walter Schackman, J.), entered August 9, 1996, which, inter alia, granted defendants' motions for summary judgment to the extent of dismissing plaintiff bidder's causes of action for breach of contract against the Owner defendants, except to the extent based on the Owner's duty to negotiate with plaintiff in good faith, and dismissing plaintiff's cause of action for tortious interference with contract against the Contractor defendants, except to the extent based on the Owner's duty to negotiate with plaintiff in good faith, unanimously affirmed, without costs.

There are issues of fact as to whether plaintiff and the Owner defendants reached a binding preliminary contract giving rise to a duty to negotiate in good faith, and, if so, whether the Owner defendants breached it (see, Goodstein Constr. Corp. v. City of New York, 67 N.Y.2d 990, 502 N.Y.S.2d 994, 494 N.E.2d 99, aff'g 111 A.D.2d 49, 52, 489 N.Y.S.2d 175;  Teachers Ins. & Annuity Assn. v. Tribune Co., 670 F.Supp. 491, 498-499 [S.D.N.Y.] ).  However, because of the preliminary nature of any agreement, plaintiff was required to demonstrate that its competitor, the Contractor defendants, used wrongful or unlawful means, or acted without competitive motive, in persuading the Owner defendants to abandon their negotiations with plaintiff (see, Guard-Life Corp. v. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 193-194, 428 N.Y.S.2d 628, 406 N.E.2d 445;  Nassau Diagnostic Imaging & Radiation Oncology Assocs. v. Winthrop-University Hosp., 197 A.D.2d 563, 602 N.Y.S.2d 650, lv. denied 83 N.Y.2d 756, 614 N.Y.S.2d 386, 637 N.E.2d 277).   While plaintiff's proof in that regard was lacking, the Contractor defendants failed to meet their initial burden of going forward on the motion for summary judgment, which, on that basis, was properly denied (see, Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).  The motion by the Ansaldo defendants may be renewed upon completion of discovery, should they be so advised.   We are in accord with the balance of the IAS court's determination and find the parties' other arguments for affirmative relief to be without merit.

MEMORANDUM DECISION.