SPINAP CORP INC v. Niles Agency, Inc., Respondent.

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

SPINAP CORP., INC., Appellant, v. Nicholas J. CAFAGNO, Defendant, Niles Agency, Inc., Respondent.

Decided: February 24, 2003

GABRIEL M. KRAUSMAN, J.P., ROBERT W. SCHMIDT, STEPHEN G. CRANE and REINALDO E. RIVERA, JJ. Tackel & Varachi, LLP, White Plains, NY, (John P. Varachi of counsel), for appellant. Banks Shapiro Gettinger Waldinger & Brennan, LLP, Mount Kisco, NY, (Mona D. Shapiro of counsel), for respondent.

In an action, inter alia, to recover damages for tortious interference with contract, the plaintiff appeals from an order of the Supreme Court, Westchester County (Rudolph, J.), entered March 18, 2002, which granted the motion of the defendant Niles Agency, Inc., to dismiss the complaint insofar as asserted against it on the ground that it is time-barred.

ORDERED that the order is affirmed, with costs.

 The Supreme Court correctly determined that the plaintiff's fifth and sixth causes of action, inter alia, to recover damages against the defendant Niles Agency, Inc. (hereinafter Niles), for tortious interference with contract, are time-barred.   According to the allegations in the complaint, dated April 27, 2000, the plaintiff's claims against Niles accrued in August 1994, when Niles allegedly induced the defendant Nicholas J. Cafagno to breach his contract with the plaintiff by accepting employment with Niles, even though Niles was aware of the contract between the plaintiff and Cafagno.   By that contract, Cafagno agreed not to engage, directly or indirectly, in a business similar to the plaintiff's.   The complaint also alleges that, beginning in August 1994, Cafagno utilized confidential information obtained from the plaintiff in soliciting the plaintiff's property and casualty insurance customers, that Niles was aware of Cafagno's actions, and that it also was aware that Cafagno had agreed not to solicit any of the plaintiff's customers (see Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94, 595 N.Y.S.2d 931, 612 N.E.2d 289;  American Fed. Group v. Edelman, 282 A.D.2d 279, 722 N.Y.S.2d 870;  Bib Constr. Co. v. City of Poughkeepsie, 273 A.D.2d 186, 187, 709 N.Y.S.2d 112).   Accordingly, all of the facts necessary to the causes of action sounding in tortious interference with contract existed by August 1994, and the plaintiff could have obtained relief in court as of that date (see Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 541, 620 N.Y.S.2d 318, 644 N.E.2d 1009).   Thus, the complaint, filed more than three years later, is time-barred (see CPLR 214[4];  Kartiganer Assoc. v. Town of New Windsor, 108 A.D.2d 898, 899, 485 N.Y.S.2d 782).

 Since tortious interference with contract is not a continuing tort, it does not avail the plaintiff to argue that Cafagno continued to solicit its customers up until the time of the filing of the complaint, or that most of the solicitations occurred in 1997, 1998, and 1999 (see Bloomfield Bldg. Wreckers v. City of Troy, 41 N.Y.2d 1102, 1103, 396 N.Y.S.2d 359, 364 N.E.2d 1130;  Hanrihan v. Parker, 19 Misc.2d 467, 469-470, 192 N.Y.S.2d 2;   Hagan Corp. v. Medical Society of County of N.Y., 198 Misc. 207, 209, 96 N.Y.S.2d 286, affd. 279 App.Div. 1058, 113 N.Y.S.2d 282; 72 N.Y. Jur 2d, Interference § 21).

The plaintiff's remaining contentions are without merit.

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