Upon the foregoing papers, defendant RJI Insurance Company (RJI) moves for an order, pursuant to CPLR 3211(a)(7), dismissing the amended third-party complaint as asserted against it on the grounds that that complaint fails to state a cause of action upon which relief can be granted.

Sometime prior to January 21, 2001, third-party defendant Dillon Contracting Corp. (Dillon) was awarded a contract by the New York City School Construction Authority (SCA) to perform work at PS 116 in Brooklyn (the project). In connection with that contract, RLI, [*2]as surety, issued a performance bond on behalf of Dillon, as principal in favor of SCA, as obligee.

On or about November 27, 2000, SCA defaulted Dillon under the contract. Sometime thereafter, SCA made a demand on RLI to complete the project pursuant to the aforementioned performance bond; RLI agreed to do so, using Dillon as its subcontractor.

Thereafter, on or about January 22, 2000, Dillon entered into a subcontract with Mian Contracting, Inc. (Mian) to perform certain masonry work at the project. On or about January 24, 2001, plaintiff Gulf Insurance Company (Gulf), as surety, issued a performance bond on behalf of Mian, as principle and in favor of Dillon, as obligee, in connection with the subcontract. In consideration for the bond, Mian and its president, Shamas Mian and Tahira Mian (referred to collectively as the Mian plaintiffs) executed an indemnity agreement in favor of Gulf as indemnitee, in which they agreed, inter alia, to indemnify Gulf for any demand made under the bond.

According to Mian,^[FN1] due to inclement weather and revised plans provided to it by Dillon, it was unable to adhere to the work schedule as set out in the subcontract and, thus, Mian requested an extension of time to complete its work. Dillon denied those extensions and on or about August 3, 2001, it defaulted Mian under the subcontract.^[FN2]

On or about August 3, 2001, Dillon made a demand under the Gulf bond and, thereafter, Gulf paid RLI as Dillon's subrogee the sum of $250,000 in settlement

of Dillon's claim under the bond.

Thereafter, Gulf commenced an action against the Mian plaintiffs seeking contractual indemnification for the monies paid out under the bond. Mian then brought this third-party action against RLI and Dillon. In its amended third-party complaint, Mian alleges, as against RLI, breach of the subcontract (the first, third, fifth and seventh causes of action), tortious interference with contract (sixth and eighth) and fraud (ninth). RLI makes this motion to dismiss the amended third-party complaint as asserted against it on the grounds that it fails to state a cause of action upon which relief can be granted. In a short-form order dated September24, 2004, this court dismissed the first, third, fifth and seventh causes of action as asserted against RLI and reserved decision on the remaining causes of action (sixth, eighth and ninth). For the reasons that follow, the court now dismisses those causes of action.

"On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must determine, accepting as true the factual averments of the complaint and according the plaintiff the benefit of all favorable inferences, whether the plaintiff can succeed upon any reasonable view of the facts as stated" (Schneider v. Hand, 296 AD2d 454 [2002]). Although a [*3]complaint may be inartfully drawn, illogical or even informal, it will be deemed to allege whatever can be implied from its statements "by fair and reasonable intendment" (Shields v School of Law, Hofstra Univ., 77 AD2d 867 [1980]; quoting Lupinski v Village of Ilion, 59 AD2d 1050 [1977]; Catonia v DeCinto,269 AD2d 916 [2000] Applying these principles here, the court concludes that plaintiff has failed to state a cause of action as against RLI..

The elements of a cause of action for tortious interference with contractual relations are: (1) a valid contract between plaintiff and a third party, (2) the defendant's knowledge of that contract, (3) the defendant's intentional procuring of the breach, and (4) damages (Foster v Churchill, 87 NY2d 744, 749-750 [1996]; see MDC Corp,.Inc, v John H, Harland Co., 228 F Supp2d 387 [2002]). However, since "economic justification is a defense to an action for tortious interference with a contract" (Foster, 87 NY2d at 750), where the defendant has an economic interest in the contract between the plaintiff and a third party, to survive a dismissal motion the plaintiff must also plead facts that would support a finding of that defendant acted with malice or employed fraudulent or illegal means to induce the breach (id; see South Fourth Street. Prop., Inc v Muschel, 1 AD3d 347 [2003]; Spectacolor inc. v Banque Nationale de Paris, 207AD2d 726 [1994]; Alvord and Swift v Stewart M. Muller Constr. Co, Inc, 46 NY2d 276 [1978]).

Here, even accepting all the allegations of the third-party complaint as true, Mian's claim amounts to no more than an allegation that RLI's actions were economically motivated. Specifically, Mian claims that RLI, through Dillon, refused to grant Mian's request for extensions to complete on the project, because it wanted to seek payment under the Gulf bond. According to Mian, RLI believed that it was in its financial interest to obtain payment under the bond because the project was going over budget and Dillon was becoming insolvent. In short, Mian has failed to plead facts that would support a finding that defendant acted with malice or employed fraudulent or illegal means to induce the breach of the contract between Dillon and Mian, and, thus, the sixth and eighth causes of action in the third-party complaint must be dismissed as asserted against RLI.

In order to make out a cause of action in fraud, a plaintiff must plead a knowing misrepresentation or failure to disclose a material fact, justifiable reliance by plaintiff and resultant injury (see Bernstein v Kelso & Co., Inc., 231 AD2d 314, 321 [1997]; 107 Realty Corp. V National Petroleum U.S.A., Ltd., 181 AD2d 817, 818 [1992]). Moreover, CPLR 3016(b) provides, with respect to a fraud cause of action, that the "circumstances constituting the wrong shall be stated in detail" (Lanzi v Brooks, 43 NY2d 778, 780 [1977])

Here, Mian's cause of action for fraud as asserted against RLI must fail because it fails to state with any particularity, the words or actions by RLI which constitute the alleged fraud.

The court has considered Mian's remaining contentions and finds them it be without merit. [*4]

Accordingly, that branch of RLI's motion, pursuant to CPLR 3211(a)(7) seeking dismissal of the sixth, eighth and ninth causes of action in the third-party complaint as asserted against it is granted and the third-party complaint is dismissed as against RLI. The third-party action is severed accordingly and the remainder of action shall continue.

This constitutes the decision and order of the court.

E N T E R,

J. S. C,