According to the complaint, defendant HRH Construction LLC (HRH) entered into a contract with defendant Vesta 24, LLC (Vesta) to serve as construction manager of construction of a fourteen story condominium building located in Manhattan. HRH allegedly hired Anko Electrical Corporation (Anko) to perform electrical work, but plaintiff First Sealord Surety, Inc. (First Sealord), as performance bond surety, was allegedly forced to hire another contractor to complete Anko's scope of work under Anko's contract with HRH. Vesta and HRH move to dismiss the fourth and fifth causes of action of the amended complaint, alleging unjust enrichment and tortious interference with contract.

"The existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter." Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 (1987). Thus, HRH's contract with Anko precludes First Sealord, as Anko's subrogor, to assert a claim against HRH for unjust enrichment. Although First Sealord argues that it is pleading unjust enrichment in the alternative, there is no bona fide dispute regarding the existence, enforceability or scope of the contract between HRH and Anko. Roberts v 112 Duane Assoc. LLC, 32 AD3d 366, 368 (1st Dept 2006); Nakumra v Fujii, 253 AD2d 387, 390 (1st Dept 1998). As Vesta and HRH indicate,

"it is a firmly established principle that a property owner who contracts with a general contractor does not become liable to a subcontractor on a quasi contract theory unless it expressly consents to pay for the subcontractor's performance. The owner's mere consent to and acceptance of improvements placed on his property by the subcontractor, without more, does not render it liable to the subcontractor ."

"It is a familiar proposition that one who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.'"

What apparently is sought to be pleaded is a claim within Section 766A of the Restatement (Second) of Torts, which states,

"One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person, by preventing the other from performing the contract or causing his performance to be more expensive or burdensome, is subject to liability to the other for the pecuniary loss resulting to him."

The Appellate Division has recognized tortious interference based on a defendant's acts that prevented a plaintiff from performing its contract with another. Stiso v Inserra Supermarkets, 179 AD2d 878 (3d Dept 1992). The Appellate Division, Second Department applied Stiso to an action alleging similar problems between a food distributor and a grocery store. Catinella v Mel Weitz Supermarkets, 286 AD2d 361 (2d Dept 2001). However, the Appellate Division, Third Department appeared to suggest that New York did not recognize the Restatement (Second) of Torts § 766A, and that Stiso was contrary to the Court of Appeals's decision in Jack L. Inselman & Co. v FNB Fin. Co., 41 NY2d 1078 (1977). See MLI Indus. v New York State Urban Dev. Corp., 205 AD2d 998, 999 (3d Dept 1994). The Court of Appeals rejected a claim under Restatement (Second) Torts § 766A founded on allegations that the defendant's conduct caused performance of the contract to be more expensive or burdensome, but did not result in breach. Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 335-336 (1983)("No New York case recognizing such a cause of action has been cited or has been found by us. We need not, however, now decide whether such a cause of action should be recognized by us in other situations"); see D'Andrea v Rafla-Demetrious, 146 F3d 64 (2d Cir 1998)("The New York courts have never expressly adopted Section 766A").

Even if one were to assume that a cause of action for tortious interference against Vesta might lie under New York law for intentionally preventing HRH's performance of HRH's contract with Anko, the basis of the alleged interference here is Vesta's alleged failure to make payment to HRH under its own contract. Unlike Stiso or Catinella, there are no allegations that Vesta otherwise interfered with, or acted with the intent to interfere with, the performance of HRH's contract with Anko. The mere failure to pay is not, without more, sufficient to establish that Vesta intended to interfere with HRH's contract with Vesta. See Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 281 ("[T]he interference must be intentional, not merely negligent or incidental to some other, lawful, purpose). Otherwise, non-payment of a contract price would [*3]result not only in liability under contract law, but also under tort law as well. Moreover, for Vesta's non-payment to have prevented HRH from performing its contract with Anko (i.e., to have prevented HRH from paying Anko), it must be presumed on this motion to dismiss that Vesta knew that HRH had no other means to pay Anko without receiving payment from Vesta. This cannot be reasonably inferred from the allegations in order to sustain this cause of action. Therefore, the fifth cause of action is dismissed.

First Sealord's request to leave to amend the complaint is denied. No proposed amendment of the complaint was submitted with First Sealord's papers.

s/

Dated:6/3/09

New York, New YorkJ.S.C.