GS Plasticos Limitada v. Bureau Veritas Consumer Products Services, Inc. , 149 A.D.3d 547 ( 2017 )

GS Plasticos Limitada v Bureau Veritas Consumer Prods. Servs., Inc. (2017 NY Slip Op 02937)

GS Plasticos Limitada v Bureau Veritas Consumer Prods. Servs., Inc.

2017 NY Slip Op 02937

Decided on April 18, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 18, 2017
Sweeny, J.P., Richter, Andrias, Webber, Gesmer, JJ.

3751 650242/09

[*1]GS Plasticos Limitada, Plaintiff-Appellant,

v

Bureau Veritas Consumer Products Services, Inc., Defendant-Respondent.

AbdulJaami, PLLC, New York (Saboor H. AbdulJaami of counsel), for appellant.

Kilpatrick Townsend & Stockton LLP, New York (Jonathan E. Polonsky of counsel), for respondent.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered July 25, 2016, which granted defendant's motion for summary judgment dismissing the second amended complaint, unanimously affirmed, without costs.

The motion court correctly dismissed the second amended complaint alleging that defendant tortiously interfered with plaintiff's contracts with a third party, Kellogg, since there was no breach by Kellogg (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 424 [1996]). In particular, the motion court correctly determined that Kellogg had a valid reason for terminating the contracts — namely, mechanical testing failures (see Saja Music Co. v Sony Music Entertainment, 212 AD2d 370, 370 [1st Dept 1995]). Even if the contracts had been cancelled due to defendant's incorrect test results regarding arsenic in the toys manufactured by plaintiff, the record contains no evidence that defendant gave false test results with the intention of procuring a breach by Kellogg (see Lama, 88 NY2d at 424; Dermot Co., Inc. v 200 Haven Co., 58 AD3d 497, 497 [1st Dept 2009]). To the contrary, defendant actively attempted to determine the reason why its testing showed high levels of arsenic while other labs' testing did not, and it informed Kellogg as soon as it determined that its results were wrong.

Plaintiff failed to preserve its argument that defendant's motion was defective because the motion did not include a copy of defendant's answer (see Medina v MSDW 140 Broadway Prop., L.L.C., 13 AD3d 67, 67-68 [1st Dept 2004]).

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

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 18, 2017

CLERK