MILLER v. LIVANIS (2020)

Order, Supreme Court, New York County (Lyle E. Frank, Jr.), entered July 31, 2019, which granted defendant's summary judgment motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff's action arose out of the same set of circumstances as his prior CPLR article 78 proceeding, and thus was barred on the grounds of res judicata (Anderson v. New York City Dept. of Educ., 93 A.D.3d 538, 538, 939 N.Y.S.2d 857 [1st Dept. 2012], lv denied 20 N.Y.3d 852, 957 N.Y.S.2d 689, 981 N.E.2d 286 [2012] ).  Both here and in the article 78 proceeding, plaintiff attacked Livanis's decision to give him a “U” rating and her refusal to allow him to rescind his resignation.  In a similar vein, plaintiff was also precluded from challenging Livanis's actions in this action under the doctrine of collateral estoppel.  When a party has been afforded a full and fair opportunity to litigate an issue and loses, collateral estoppel will bar him from litigating the issue a second time (Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455, 492 N.Y.S.2d 584, 482 N.E.2d 63 [1985] ).

The IAS court also properly granted summary judgment to Livanis on the merits.  Plaintiff does not have a claim for tortious interference with contract, because, among other reasons, he has not properly alleged that he was party to a contract with a third party (Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94, 595 N.Y.S.2d 931, 612 N.E.2d 289 [1993] ).  The IAS court properly found that the collective bargaining agreement could not serve as the basis for a tortious interference with contract claim (Britt v. City of N.Y., 151 A.D.3d 606, 607, 54 N.Y.S.3d 290 [1st Dept. 2017];  see also Berlyn v. Board of Educ. of E. Meadow Union Free School Dist., 80 A.D.2d 572, 573, 435 N.Y.S.2d 793 [2d Dept. 1981], affd 55 N.Y.2d 912, 449 N.Y.S.2d 30, 433 N.E.2d 1278 [1982] ).

The Court also properly dismissed plaintiff's claim for tortious interference with prospective business relations.  Plaintiff is unable to show that Livanis directly interfered with any prospective third-party agreement through “wrongful means” (Kickertz v. New York Univ., 110 A.D.3d 268, 275, 971 N.Y.S.2d 271 [1st Dept. 2013] ).  Nor can he establish that he would have been hired by a third party “but for” Livanis's conduct (Murphy v. City of New York, 59 A.D.3d 301, 301, 874 N.Y.S.2d 407 [1st Dept. 2009] ).  While plaintiff argues that Livanis did interfere, by directly contacting the Principal's Program at Hunter College so that he would lose an opportunity to become an administrator, such vague aspirations of future employment are insufficient to meet this standard (id.).

We have considered plaintiff's remaining contentions, and find them unavailing.