Burba v. Rochester Gas & Electric Corp. , 528 N.Y.S.2d 241 ( 1988 )

— Order reversed on the law with costs and motion granted. Memorandum: Defendant, Rochester Gas and Electric Corporation (RG&E), notified construction contractors in the area that it would not permit employment of plaintiffs on property owned by RG&E. Plaintiffs, members of labor unions, brought this action against RG&E alleging that RG&E intentionally interfered with their rights to employment under the union contracts. RG&E moved for summary judgment and Special Term denied the motion. On appeal, RG&E contends that plaintiffs have no cause of action for intentional interference with contract. Such a cause of action must allege: (1) a valid contract; (2) defendant’s knowledge of the contract; (3) defendant’s intentional interference with the contract and a resulting breach; and (4) damages (Burba v Rochester Gas & Elec. Corp., 90 AD2d 984, 985). RG&E points out that the union contracts do not guarantee plaintiffs the right to employment and that plaintiffs have no other contracts of employment. Thus, RG&E contends, there was no breach of contract caused by the actions of RG&E.

RG&E has submitted sufficient proof to show that plaintiffs do not have a cause of action for intentional interference with contract. The union agreements do not contain provisions entitling plaintiffs to employment, and plaintiffs had no contract of employment with any contractor or subcontractor that was breached because of the notice given by RG&E. The contracts between the unions and the contractors gave plaintiffs the right only to be considered for employment by the contractors.

We cannot agree with the dissent’s finding that plaintiffs may have a cause of action for tortious interference with economic advantage. This cause of action was neither pleaded by plaintiffs nor raised in response to defendant’s summary judgment motion or on appeal. Further, the record does not establish that plaintiffs would be entitled to relief under this legal theory. RG&E by its actions only barred plaintiffs from working on its property. It did not deprive plaintiffs of consideration or employment by contractors for projects other than at its facilities. In so doing, RG&E was exercising its own rights rather than interfering with plaintiffs’ business relations with third parties (see, e.g., Florida Tel. Corp. v Essig, 468 So 2d 543 [Fla]).

All concur, except Boomer and Green, JJ., who dissent and vote to affirm in the following memorandum.