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

William J. BLUM, Appellant, v. NEW YORK STOCK EXCHANGE, INC., Respondent.

Decided: September 28, 1998

Before BRACKEN, J.P., and RITTER, THOMPSON and KRAUSMAN, JJ. Costello, Shea & Gaffney, New York City (Frederick N. Gaffney, Anthony J. Brian, Bradford Cooke, and Amy Chan, of counsel), for appellant. Milbank, Tweed, Hadley & McCloy, New York City (Russell E. Brooks and Charles E. Tebbe, III, of counsel), for respondent.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Bucaria, J.), entered May 23, 1997, which granted the defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7).

ORDERED that the order is affirmed, with costs.

The plaintiff has been a member of the New York Stock Exchange, Inc. (hereinafter the Exchange) since 1973.   Due to hip replacement surgery in 1983, the plaintiff is unable to stand for long periods of time, and for over 12 years, the Exchange accommodated his disability by permitting him to sit on a stool adjacent to his trading booth.   However, in February 1996, the Exchange withdrew its permission for the plaintiff to use a stool on the trading floor because his booth is located in an aisle designated as an emergency evacuation route.   After the parties were unable to reach a compromise, the plaintiff commenced this action against the Exchange, seeking damages on theories including breach of contract, tortious interference with business relations, and breach of fiduciary duties.   The defendant thereafter moved to dismiss the complaint pursuant to CPLR 3211(a)(1) and (a)(7), and the Supreme Court granted its motion.   We affirm.

 Contrary to the plaintiff's contention, the Supreme Court did not err in dismissing his causes of action to recover damages for breach of contract and tortious interference with business relations.   These causes of action are barred by the Exchange's Constitution, which provides that it will not be liable for any damages by a member “growing out of the use or enjoyment by such member * * * of the facilities afforded by the Exchange” (see, Rochelle Assocs. v. Fleet Bank of N.Y., 230 A.D.2d 605, 645 N.Y.S.2d 798).   In any event, the plaintiff's cause of action based on tortious interference with business relations fails to state a cause of action because there is no indication that the Exchange's actions were motivated solely by malice or effectuated by unlawful means (see, Shapiro v. Central Gen. Hosp., Inc., 251 A.D.2d 317, 673 N.Y.S.2d 724;  M.J. & K. Co. v. Matthew Bender & Co., 220 A.D.2d 488, 631 N.Y.S.2d 938;  Pamilla v. Hospital for Special Surgery, 223 A.D.2d 508, 637 N.Y.S.2d 689).   Furthermore, the plaintiff's cause of action to recover damages for breach of a fiduciary duty was also properly dismissed, since he has not alleged facts sufficient to transform his business relationship with the Exchange into a fiduciary relationship (see, RSA Distributors, Inc. v. Contract Furniture Sales, Ltd., 248 A.D.2d 370, 669 N.Y.S.2d 842;  CFSC Capital Corp. XXVII v. W.J. Bachman Mechanical Sheet Metal Co., 247 A.D.2d 502, 669 N.Y.S.2d 329;  Oursler v. Women's Interart Center, 170 A.D.2d 407, 408, 566 N.Y.S.2d 295).

The plaintiff's remaining contentions are without merit.


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