GS v. Bureau Veritas, Defendant, Bureau Veritas Consumer Products Services, Inc., Defendant–Respondent.

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Supreme Court, Appellate Division, First Department, New York.

& GS Plasticos Limitada, Plaintiff–Appellant, v. Bureau Veritas, Defendant, Bureau Veritas Consumer Products Services, Inc., Defendant–Respondent.

5447 M–2623

Decided: October 13, 2011

Andrias, J.P., Friedman, Renwick, DeGrasse, Abdus–Salaam, JJ. Abduljaami, PLLC, New York (Saboor H. Abduljaami of counsel), for appellant. Kilpatrick Townsend & Stockton LLP, New York (Jonathan E. Polonsky of counsel), for respondent.

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Order, Supreme Court, New York County (Joan A. Madden, J.), entered on or about April 7, 2010, which, insofar as appealed from, granted the motion by defendant Bureau Veritas Consumer Products Services, Inc. (BVCPS) to dismiss the negligence and tortious interference with prospective business relations claims, unanimously affirmed, without costs.

Plaintiff's claims stem from BVCPS's issuance of allegedly erroneous laboratory reports regarding the chemical testing of products manufactured by plaintiff.   Plaintiff did not engage BVCPS to conduct the testing.   Even assuming BVCPS rendered professional services, it is not alleged that plaintiff relied on the reports or had any dealings with BVCPS.   Hence, there is no allegation that the relationship between the parties sufficiently approached privity so as to give rise to a negligence cause of action (see Credit Alliance Corp. v. Arthur Andersen & Co., 65 N.Y.2d 536 [1985] ).

The claim alleging tortious interference with prospective economic relations fares no better.  “To establish such a claim, a plaintiff must demonstrate that the defendant's interference with its prospective business relations was accomplished by ‘wrongful means' or that defendant acted for the sole purpose of harming the plaintiff” (Snyder v. Sony Music Entertainment, 252 A.D.2d 294, 299–300 [1999] ).   Here, it is alleged that but for BVCPS's conduct plaintiff would have entered into agreements with unnamed third parties.   Plaintiff alleges that the “wrongful means” employed by BVCPS consisted of the alleged misrepresentations about plaintiff's products.   This claim fails because it is not alleged that BVCPS made the misrepresentations to any of the unnamed third parties.   Moreover, an implicit element of acting “for the sole purpose of harming the plaintiff” is knowledge of the prospective economic relation (see Caprer v. Nussbaum, 36 AD3d 176, 204 [2006] ).   As the court correctly found, the complaint does not contain allegations from which it can be inferred that BVCPS knew about the prospective agreements.

M–2623 – GS Plasticos Limitada v. Bureau Veritas, et al.

Motion to strike portions of reply brief and impose sanctions denied.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK