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VITRO S.A.B. DE C.V., Plaintiff–Appellant, v. AURELIUS CAPITAL MANAGEMENT, L.P., et al., Defendants–Respondents.

Decided: October 16, 2012

TOM, J.P., MAZZARELLI, ANDRIAS, DeGRASSE, ROMÁN, JJ. Susman Godfrey L.L.P., Los Angeles, CA (Bryan J.E. Caforio of the bar of the State of California, admitted pro hac vice, of counsel), for appellant. Dechert LLP, New York (Robert A. Cohen of counsel), for respondents.

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered May 8, 2012, which, insofar as appealed from as limited by the briefs, granted defendants' motions to dismiss the complaint, unanimously affirmed, with costs.

Plaintiff, a bankrupt glass manufacturer based in Mexico, seeks to hold defendants liable for damages allegedly incurred in connection with statements published in a press release issued in advance of plaintiff's public launch of a proposed reorganization plan. The motion court properly dismissed the breach of contract claim against the non-signatory defendants because in the absence of a contract, there could be no breach (see Pevensey Press v. Prentice–Hall, Inc., 161 A.D.2d 500, 501, 555 N.Y.S.2d 769 [1st Dept 1990] ). Plaintiff also failed to state a claim for breach of contract against the sole signatory defendant, Lord, Abbett & Co., LLC, as the press release merely evaluated plaintiff's proposed plan, a permitted use of confidential material, and did not disclose any specific confidential terms. Moreover, this expression of opinion is constitutionally protected and cannot serve as the basis for plaintiff's injurious falsehood claim (see Kidd v. Epstein, 79 A.D.3d 650, 915 N.Y.S.2d 38 [1st Dept 2010] ).

In the absence of any tortious conduct, the element of “wrongful means,” necessary to support a claim for tortious interference with prospective economic advantage, is lacking (see NBT Bancorp v. Fleet/Norstar Fin. Group, 87 N.Y.2d 614 [1996]; Guard–Life Corp. v. Parker Hardware Mfg. Corp., 50 N.Y.2d 183 [1980] ). Plaintiff also failed to establish malice as the sole motive for defendants' actions. As creditors, defendants have a clear economic interest in this matter, separate from any possible malicious motive (see Advanced Global Tech., LLC v. Sirius Satellite Radio, Inc., 44 A.D.3d 317, 843 N.Y.S.2d 220 [1st Dept 2007] ).

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