The following e-filed documents, listed by NYSCEF document number (Motion 001) 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 50, 54, 56, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 93, 94 were read on this motion to/for DISMISSAL.

Upon the foregoing documents and oral argument before the court, Defendants the New York City Department of Consumer Worker and Protection (the "DCWP"), Vilda Vera Mayuga ("Commissioner Mayuga") and the City of New York (the "City") (collectively the "Municipal Defendants"), move to dismiss Plaintiff Runway Towing Corp.'s ("Plaintiff") complaint and all cross-claims against them. Defendants Michael Mazzio ("Mr. Mazzio") and Mike's Heavy Duty Towing, Inc. (collectively the "Mike's Defendants"), as well as Eric Ulrich ("Mr. Ulrich") also move to dismiss Plaintiff's complaint and all cross-claims. Plaintiff opposes all three motions. For the forgoing reasons the Municipal Defendants' motion is granted in part, the Mike's Defendants' motion is granted, and Mr. Ulrich's motion is granted.^[FN1]

On September 19, 2024, Plaintiff commenced this action to recover damages allegedly sustained when the DCWP denied Plaintiff's application to renew its towing license (NYSCEF Doc No. 2).^[FN2] Plaintiff is a towing and storage company that was founded in 2004 (id. ¶ 32). Mr. Mazzio is the owner of Mike's Heavy Duty Towing, Inc., a competing tow company (id. ¶¶ 10, 13). Mr. Ulrich is a former New York City Councilman for District 32, a former senior advisor to Mayor Eric Adams, and the former New York City Department of Buildings Commissioner (NYSCEF Doc No. 4, Exhibit B at 1-2). To provide towing services to disabled vehicles, a tow truck company needs both a towing license from the DCWP and an Arterial Tow Permit from the New York City Police Department (the "NYPD") (NYSCEF Doc No. 16, memo of law at 3). In 2018, Plaintiff was awarded a three-year permit extension through March 31, 2021, to provide exclusive towing services on seven arterial highways in New York City (NYSCEF Doc No. 2, verified complaint ¶¶ 32, 33).^[FN3]

In 2020, the DCWP began an investigation into Plaintiff's business practices (id. ¶¶ 30, [*2]36).^[FN4] By letter dated January 17, 2020, the DCWP issued a subpoena seeking records from Plaintiff (Index No. 152746/2021, NYSCEF Doc No. 9). On February 10, 2020, and February 24, 2020, Plaintiff provided documents responsive to the subpoena. By letter dated August 12, 2020, the DCWP notified Plaintiff of its intent not to renew Plaintiff's license and requested that Plaintiff provide certain additional records (NYSCEF Doc No. 34). Following an exchange of documents and letters, the DCWP denied Plaintiff's application to renew its license by letter dated January 26, 2021 (the "Nonrenewal Letter") (NYSCEF Doc No. 2, 36). According to the Nonrenewal Letter, the decision to deny Plaintiff's license was based on the DCWP's conclusion that Plaintiff was overcharging its customers in violation of various provisions of the Administrative Code of the City of New York (the "Code"), including §§ 20-518(b)(4), 20-509.1, and 20-519(c)(1) and failed to produce documents responsive to the subpoena (NYSCEF Doc No. 36).

Following the non-renewal, on March 18, 2021, Plaintiff commenced an action under Index No. 152746/2021, in Supreme Court, New York County, against the DCWP (the "Article 78 Action") (Index No. 152746/2021, NYSCEF Doc No. 1-15). In that action, Plaintiff challenged the denial of its renewal application and sought to reverse the finding that Plaintiff violated various provisions of the Code (Index No. 152746/2021, NYSCEF Doc No. 1, petition). Plaintiff alleged that the final determination denying its renewal license violated Plaintiff's due process rights because Plaintiff was not afforded an evidentiary hearing (id.). Plaintiff also sought a preliminary and permanent injunction enjoining the DCWP from taking any further action to enforce the denial (id.). On April 20, 2021, the Hon. Debra James ("Justice James") denied Plaintiff's request for a preliminary injunction and ordered that the proceeding be held in abeyance until the DCWP filed the record of the administrative proceeding (Index No. 152746/2021, NYSCEF Doc No. 47).

Several months later, by decision and order dated August 27, 2021, Justice James vacated the DCWP's determination and remanded the matter for a recalculation of penalties proportionate to the violations of the Code §§ 20-518(b)(4), 20-519(c)(1)(3), and 20-509.1, pursuant to which Plaintiff charged tow fees exceeding the amounts permitted thereunder, and for failing to maintain and/or produce all documents responsive to a subpoena, in violation of the Code § 20-516 and Title 6 of the Rules of the City of New York § 2-378 (Index No. 152746/2021, NYSCEF Doc No. 69). Justice James also held that Plaintiff's due process rights were not violated because there is no property interest in the renewal of an expired license and no constitutional due process right to a hearing (id.).

The DCWP appealed that decision and in December 2022, the Appellate Division, First Department, reversed the trial court decision, denied the petition, and dismissed the proceeding altogether (Index No. 152746/2021, NYSCEF Doc No. 97; Runway Towing Corp. v New York City Dep't of Consumer & Worker Prot., 211 AD3d 621 [1st Dept 2022]). The Appellate Division, First Department, found that the DCWP rationally determined that Plaintiff repeatedly charged excessive towing and storage fees, and that such fees were impermissible under the Code (Runway Towing Corp., 211 AD3d at 622). The Appellate Division, First Department, further held that the DCWP's denial of Plaintiff's license renewal did not shock the conscience, as the penalty was not disproportionate to Plaintiff's numerous overcharges over a two-year [*3]period (id.). Finally, the Appellate Division, First Department, held that Plaintiff's due process arguments failed because there is no property interest in the renewal of an expired license (id.).^[FN5]

Thereafter, on February 10, 2023, Plaintiff commenced a lawsuit bearing Index No. 1:23-CV-1095(ENV)(PK) in the District Court for the Eastern District of New York against the DCWP (NYSCEF Doc No. 24). Plaintiff asserted causes of action for: (1) a violation of Plaintiff's civil rights pursuant to 42 U.S.C. § 1983 premised on a deprivation of Plaintiff's property without due process when the DCWP denied Plaintiff's renewal application without a hearing; (2) a violation of New York Constitution, Article 1 Section 6, premised on a deprivation of Plaintiff's property without due process; (3) declaratory relief; and (4) injunctive relief (id.). By Memorandum and Decision dated March 14, 2023, District Judge Eric Vitaliano ("Judge Vitaliano") denied Plaintiff's motion for injunctive relief and dismissed the action in its entirety, finding that Plaintiff's due process claims were barred by the doctrine of res judicata (NYSCEF Doc No. 25). Specifically, Judge Vitaliano concluded that the issue of whether Plaintiff had a property interest in its expired license was "specifically raised and decided in the state court litigation" and was "necessary to deciding whether [the] DCWP acted arbitrarily or unlawfully in denying Runway's license renewal without an evidentiary hearing" (id. at 5). Judge Vitaliano further held that even if Plaintiff was not foreclosed from relitigating the issue of whether the DCWP deprived Plaintiff of due process, precedent makes clear that Plaintiff has no property interest in the renewal of an expired license (id. at 7 ["at any rate, if not barred by issue preclusion, had Runway gotten that second bite, given the precedents, see supra note 2, that bite would be just as sour as the first [. . .] Runway's loss on its core essential claim that it had a constitutionally protected right in its expired operating license puts an end to this litigation [. . .] as a consequence, there is no likelihood of success nor constitutional harm, irreparable or otherwise, no entitlement to a temporary restraining order, injunctive or declaratory relief, or damages attendant to a claim for deprivation of constitutional right to procedural due process"]).

Sixth months after the dismissal of Plaintiff's first federal action, on September 13, 2023, the District Attorney of New York issued a public announcement that Mr. Mazzio and Mr. Ulrich, among others, were indicted for conspiracy and bribery for actions that took place "on or about January 5, 2021, to on or about November 1, 2022" (the "Indictments") (NYSCEF Doc No. 80). According to the Indictments, in relevant part, Mr. Ulrich used his authority and influence to benefit Mr. Mazzio and entities controlled by him in exchange for money and gifts (id.). "It was part of the conspiracy for Mr. Ulrich [. . .] to secure and to attempt to secure New York City government employment on behalf of co-conspirators and their family members" and "to make recommendations for certain positions within the administration that would be beneficial to [. . .] [Mr.] Mazzio, and others, including the DCWP Commissioner" (id.). "It was also part of this conspiracy for [Mr.] Mazzio [. . .] "to use [his] access to said high-ranking officials 'to attempt to obtain exclusive contracts for arterial towing for Mike's Heavy Duty Towing, a business operated and controlled by [Mr.] Mazzio, and to attempt to convince said officials to disqualify a competitor's existing arterial towing contract" (id.). "It was also part of this conspiracy for [Mr.] Ulrich to agree to assist [Mr.] Mazzio to resolve existing issues relating to Mike's Heavy Duty Towing's tow truck company license issued by the DCWP" (id.).

Four months after the Indictments, on January 26, 2024, Plaintiff filed another federal lawsuit in the District Court for the Eastern District of New York bearing Index 1:24-CV-00577-KAM-JAM (NYSCEF Doc No. 26). Plaintiff named the DCWP, Commissioner Mayuga, the City, Mr. Mazzio, Mike's Heavy Duty Towing, Inc., and Mr. Ulrich as defendants, and raised for the first time the allegations of bribery and corruption (id.). Plaintiff interposed causes of action for: (i) tortious interference, (ii) interference with prospective economic advantage, (iii) negligence, (iv) defamation, (v) violations of the Racketeer Influenced and Corrupt Organizations Act, (vi) civil conspiracy, and (vii) violation of Plaintiff's civil rights under 42 U.S.C. §§ 1983 and 1985 (id.). On June 21, 2024, the Municipal Defendants filed a letter requesting a pre-motion conference on their anticipated motion to dismiss the complaint (NYSCEF Doc No. 16, mem of law at 7). On August 1, 2024, District Judge Kiyo Matsumoto ("Judge Matsumoto") held a pre-motion conference that culminated in Plaintiff voluntarily dismissing the action against all defendants without prejudice (NYSCEF Doc No. 27; NYSCEF Doc No. 83).

One month later, Plaintiff commenced the instant action (NYSCEF Doc No. 2). Plaintiff's complaint interposes six causes of action against the Municipal Defendants, including (i) tortious interference, (ii) interference with prospective economic advantage, (iii) prima facie tort, (iv) negligence, (v) civil conspiracy, and (vi) violations of 42 U.S.C. §§ 1983 and 1985 (id. at 16-28). Against the Mike's Defendants and Mr. Ulrich, Plaintiff interposes causes of action sounding in (i) tortious interference, (ii) interference with prospective economic advantage, (iii) prima facie tort, and (iv) civil conspiracy (id.). The crux of Plaintiff's complaint is that the Mike's Defendants bribed Mr. Ulrich to improperly influence the DCWP, thereby enabling them to regain control over certain portions of the highway (id. ¶ 10, 13-7, 30, 31, 37, 40, 41, 43, 57, 74-9, 92, 98-100, 123, 131-4). Plaintiff alleges that in addition to paying Mr. Ulrich, the Mike's Defendants informed the NYPD and the DCWP that Plaintiff was overcharging its customers and should investigate Plaintiff (id. ¶ 18, 30, 31, 36, 47, 67, 68). Additionally, Plaintiff alleges that the DCWP's decision to appeal Justice James' decision to the Appellate Division, First Department, was an act of corruption (id. ¶ 17, 30, 37, 39, 50, 76, 102).

On November 22, 2024, the Municipal Defendants and the Mike's Defendants filed their pre-answer motions to dismiss (NYSCEF Doc No. 15, 32). On December 18, 2024, Mr. Ulrich filed his (NYSCEF Doc No. 52). All three motions were scheduled for oral argument before the court on March 18, 2025. On the date set for oral argument, only the Municipal Defendants appeared. The Municipal Defendants advised the court that on March 17, 2025, counsel for the Mike's Defendants filed a letter notifying the court that Plaintiff commenced a petition in bankruptcy in the United States Bankruptcy Court, Eastern District of New York (NYSCEF Doc No. 89). The court then stayed the proceeding pending the resolution of the bankruptcy proceeding (NYSCEF Doc No. 91). On March 20, 2025, Plaintiff filed a motion to lift the stay (NYSCEF Doc No. 99). On June 3, 2025, the court lifted the stay, and the parties were directed to appear for oral argument on the motions to dismiss on July 15, 2025 (NYSCEF Doc No. 109). On July 15, 2025, all parties were present for oral argument.

The Municipal Defendants move to dismiss Plaintiff's complaint and all cross-claims against them pursuant to CPLR § 3211(a)(7) and for sanctions and costs pursuant to Title 22 of the New York Codes, Rules, and Regulations § 130-1.1. The Municipal Defendants argue that [*4]Plaintiff fails to state a cause of action against it because Plaintiff previously litigated its due process claims in three prior lawsuits. Additionally, the Municipal Defendants contend that they do not owe Plaintiff a special duty of care and that Plaintiff has not alleged facts demonstrating tortious interference with contract, prima facie tort, or interference with prospective economic advantage because Plaintiff cannot demonstrate that the DCWP acted with the sole purpose and intention of harming Plaintiff when it denied Plaintiff's license renewal. Finally, the Municipal Defendants argue that they are entitled to sanctions and costs because this is the fourth action that Plaintiff has commenced against them for not renewing its license, which is within the sound discretion of the licensing agency.

Plaintiff opposes the Municipal Defendants' motion, arguing that its due process claim is not merely procedural. Rather, Plaintiff contends that an agency's determination cannot stand if it is the product of corruption, and that it was denied due process in its prior lawsuits because the evidence of such corruption was neither known nor before the court at that time. Plaintiff further argues that the Municipal Defendants' res judicata arguments fail because the issue of corruption was never raised in the previous proceeding, was never fully and fairly litigated, and is necessary to support a valid and final judgment on the merits. Finally, Plaintiff argues that it is not required to plead the existence of a special duty and further, has alleged adequate facts to support its causes of action for tortious interference, prima facie tort, and civil conspiracy.

The Mike's Defendants move to dismiss Plaintiff's complaint pursuant to CPLR §§ 3211(a)(1), (5), and (7). The Mike's Defendants argue that Plaintiff's complaint is untimely because Plaintiff's causes of action accrued in 2020 when the DCWP began its investigation; and therefore, expired on August 12, 2023, before Plaintiff commenced its first action against the Mike's Defendants. Next, the Mike's Defendants argue that the Indictments completely refute Plaintiff's claims. Specifically, they contend that the Indictments demonstrate Mr. Ulrich was not appointed to his administrative positions until after the DCWP had completed its investigation and issued its decision denying Plaintiff's renewal application. The Mike's Defendants also contend that the allegations in the Indictments occurred after the DCWP's decision not to renew Plaintiff's license. With respect to the absence of factual allegations against them, the Mike's Defendants argue that Plaintiff failed to allege the existence of a contract with the municipal agencies to provide towing services, asserting instead only an expectation that its tow license would be renewed. The Mike's Defendants argue that Plaintiff has not stated a claim for interference with prospective economic advantage because any economic advantage that Plaintiff sought was dependent on the discretionary judgment of the DCWP. The Mike's Defendants also contend that Plaintiff has not presented facts showing that they were the actual or proximate cause of Plaintiff's loss, arguing instead that the loss resulted from Plaintiff's own wrongdoing in overcharging customers. The Mike's Defendants argue that Plaintiff fails to state a cause of action for prima facie tort because Plaintiff has not pleaded facts demonstrating that the DCWP's denial was motivated solely by malice or by disinterested malevolence because the DCWP rationally determined that Plaintiff was overcharging its customers. Finally, the Mike's Defendants argue that Plaintiff has failed to state a cause of action for civil conspiracy, contending that the alleged conduct does not rise to the level of a conspiracy and that Plaintiff's own actions led to the non-renewal of its license.

Plaintiff opposes the Mike's Defendants' motion on the basis that its action is timely and contains sufficient factual allegations. Specifically, Plaintiff argues that its statute of limitations [*5]has not run because it did not learn about the Indictments until 2023 and the conduct that is alleged in the Indictments occurred from January 5, 2021, to November 1, 2022. Plaintiff reiterates its arguments that it is not taking another bite at its license renewal, but instead that an agency's determination cannot be the product of corruption. Plaintiff argues that, had Mr. Mazzio not been bribing Mr. Ulrich, it would have received a fine for its alleged violations. Additionally, Plaintiff contends that the complaint alleges sufficient facts to support all of its causes of action against the Mike's Defendants.

Finally, Mr. Ulrich moves to dismiss Plaintiff's complaint and all cross-claims against it. Rather than advance his own arguments, Mr. Ulrich has adopted the arguments put forth by the Municipal Defendants and the Mike's Defendants. Plaintiff's opposition reiterates its arguments to the Municipal Defendants' and the Mike's Defendants motions.

On a motion to dismiss brought under CPLR § 3211 (a)(7), the court must "accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994] [citations omitted]). Ambiguous allegations must be resolved in the plaintiff's favor (see JF Capital Advisors, LLC v Lightstone Group, LLC, 25 NY3d 759, 764 [2015]). "The motion must be denied if from the pleadings' four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law" (511 West 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002] [internal citations omitted]). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (Cortlandt Street Recovery Corp. v Bonderman, 31 NY3d 30, 38 [2018]), but a pleading consisting of "bare legal conclusions" is insufficient (Leder v Spiegel, 31 AD3d 266, 267 [1st Dept 2006], aff'd 9 NY3d 836 [2007], cert denied 552 US 1257 [2008]) and "the court is not required to accept factual allegations that are plainly contradicted by the documentary evidence or legal conclusions that are unsupportable based upon the undisputed facts" (Robinson v Robinson, 303 AD2d 234, 235 [1st Dept 2003]).

As an initial matter, this action must be dismissed against the DCWP because City agencies are not legally cognizable entities and therefore are not proper parties. Pursuant to Chapter 17, Section 396 of the New York City Charter, "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law" (NY City Charter § 396). There is no exception for the DCWP (Siino v Dep't of Educ. of City of New York, 44 AD3d 568 [1st Dept 2007]; McCullough v City of NY, 2022 NY Slip Op 33098[U], *7 [Sup Ct, NY County 2022]). Therefore, the DCWP is not a proper party to the action, and the action is dismissed as against the DCWP.

Next, the court finds that the action must be dismissed against Commissioner Mayuga because Plaintiff has not alleged any facts against Commissioner Mayuga individually or in her official capacity (Leder, 31 AD3d at 267).

With only the City remaining amongst the Municipal Defendants, the court turns to Plaintiff's causes of action against it, beginning with res judicata. Conceptually, 'res judicata' is an umbrella term encompassing both claim preclusion and issue preclusion, which are described [*6]as two separate aspects of an overarching doctrine (Rojas v Romanoff, 186 AD3d 103, 107 [1st Dept 2020]; Israel v Wood Dolson Co., 1 NY2d 116, 119 [1956] ["Behind the phrase res judicata lies a rule of reason and practical necessity [. . .] [o]ne who has had his day in court should not be permitted to litigate the question anew"]). "Claim preclusion, the primary aspect of res judicata, acts to bar claims that were, or should have been, advanced in a previous suit involving the same parties" (Rojas, 186 AD3d at 107). Whereas, issue preclusion, "historically called collateral estoppel, pertains to the bar on relitigating issues that were argued and decided in the first suit" (id.).

New York employs a "transactional approach" to claim preclusion which "prevents relitigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions that either were raised or could have been raised in the prior proceeding" (id. at 108; Thomas v City of New York, 239 AD2d 180, 180 [1st Dept 1997]). Claim preclusion, therefore, applies to those claims "actually litigated or that could have been litigated, and despite the fact that the claims are based on a different theory or seek a different remedy" (Thomas, 239 AD2d at 180).

Issue preclusion, on the other hand, "prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action" (Rojas, 186 AD3d at 108; see also 517-525 W. 45 LLC v New York City Dep't of Hous. Pres. & Dev., 225 AD3d 478, 479 [1st Dept 2024] ["Here, although styled as breach of contract claims seeking various categories of relief, at its core, the complaint in this action seeks the identical relief [. . .] that was requested and denied in the dismissed article 78 proceeding"])." "To successfully invoke this doctrine[:] the issue in the second action must be identical to an issue which was raised, necessarily decided and material in the first action, [and] the party to be precluded must have had a full and fair opportunity to litigate the issue in the earlier action (Kim v Goldberg, Weprin, Finkel, Goldstein, LLP, 120 AD3d 18, 23 [1st Dept 2014]).

"A determination whether the first action or proceeding genuinely provided a full and fair opportunity requires consideration of "the 'realities of the [prior] litigation', including the context and other circumstances which may have had the practical effect of discouraging or deterring a party from fully litigating the determination which is now asserted against him" (Ryan v New York Tel. Co., 62 NY2d 494, 501 [1984]). "Among the specific factors to be considered are the nature of the forum and the importance of the claim in the prior litigation, the incentive and initiative to litigate and the actual extent of litigation, the competence and expertise of counsel, the availability of new evidence, the differences in the applicable law and the foreseeability of future litigation" (id.). Where evidence is not discovered until after the initial determination is made, the first decision may not have preclusive effect on a subsequent action (Sapphire Inv. Ventures, LLC v Mark Hotel Sponsor LLC, 131 AD3d 821, 821—22 [1st Dept 2015).

In this instance, although the City argues that res judicata precludes only Plaintiff's due process claims, the court finds that the reach of res judicata in this case is much broader than Plaintiff's due process claims alone. Plaintiff adjudicated two actions, and commenced a third action challenging the DCWP's decision to not renew its license (NYSCEF Doc No. 2, 24; Index No. 152746/2021, NYSCEF Doc No. 1-15).^[FN6] This is now the fourth action that Plaintiff has [*7]brought against the City because it denied Plaintiff's application to renew its license after determining that it was overcharging its customers.^[FN7] While Plaintiff attempts to fashion this complaint into something new and different, the entirety of Plaintiff's case turns on the DCWP's decision to not renew its license. Put another way, the only relief Plaintiff seeks the only right that Plaintiff attempts to vindicate- is the loss of its business because the DCWP declined to renew its license (517-525 W. 45 LLC, 225 AD3d at 479).

Whereas in the first two actions Plaintiff argued that the decision was arbitrary and capricious and Plaintiff's due process rights were violated when it was denied an evidentiary hearing, Plaintiff now argues that the DCWP's decision was the product of corruption, and that Plaintiff was denied due process because it litigated the DCWP's decision without knowing about the alleged corruption.^[FN8] These arguments are not only specious and without any factual [*8]support — but wholly undermined by Plaintiff's allegations that it should have received a penalty for its de minimus violations (NYSCEF Doc No. 2, verified complaint ¶ 11, 30, 37, 38), that it was never afforded a hearing for any of the purported violations (id. ¶ 38), and that it was damaged when the DCWP declined to renew its license (id. ¶¶ 10, 37, 43, 50, 52, 60, 84, 85, 94, 121).

Even when affording Plaintiff every possible favorable inference, the court cannot see how Plaintiff is not, once again, attempting to litigate the non-renewal of its license without regard to the preclusive effect of the issues already raised and decided in Plaintiff's first two actions.^[FN9] Those include, specifically, the determinations that Plaintiff was overcharging its customers, that the DCWP acted within the scope of its authority, and that Plaintiff possesses no protected interest in the renewal of its license (Runway Towing Corp. v New York City Dep't of Consumer & Worker Prot., 211 AD3d 621, 622 [1st Dept 2022] [the "DCWP rationally determined that [Plaintiff] repeatedly charged excessive towing and storage fees [. . .] and "there is no property interest in the renewal of an expired license"]).^[FN10] The issues raised, necessarily decided, and material in the first two actions are identical to those asserted in the present complaint.^[FN11]

In an effort to overcome this reality, Plaintiff contends that issue preclusion does not apply here because it lacked a full and fair opportunity to litigate the issues of bribery and corruption in its prior actions, as it was unaware of the alleged misconduct until the Indictments were made public—after the first two cases had been decided.^[FN12] Even if the court were to credit this argument and treat the allegations of bribery and corruption as newly discovered evidence, Plaintiff's complaint would nonetheless fail. First, Plaintiff has not raised any new factual allegations with respect to the City. All the allegations that could be considered new evidence involve Mr. Mazzio and Mr. Ulrich. The City is not implicated simply by virtue of Mr. Ulrich's status as an employee of the City because bribery is not within the scope of a public official's employment (Rivera v State, 34 NY3d 383, 389 [2019]; Doe v Wilhelmina Models, Inc., 229 AD3d 128, 145 [1st Dept 2024]; G.P. v State, 82 Misc 3d 265, 275—76 [Ct Cl NY 2023]; White v Hampton Mgmt. Co. L.L.C., 35 AD3d 243, 244 [1st Dept 2006] [actions taken for "purely personal motives were an obvious departure from the normal duties"]).^[FN13]

Next, there is no new evidence surrounding the DCWP's decision to deny Plaintiff's renewal application. The DCWP began its investigation into Plaintiff's practices and notified Plaintiff of its intent to not renew Plaintiff's license in 2020, over one year before any act alleged in the Indictments (January 26, 2021, to November 1, 2022). The period of overcharging that the [*9]DCWP relied on when making its determination (January 1, 2018, through February 10, 2020) predates any act alleged in the Indictments. Thus, not only was the DCWP already investigating Plaintiff for one year before the alleged bribery began, but the period in which the DCWP relied on to make its decision was over three years before the alleged bribery. Significantly, Plaintiff has not connected Mr. Ulrich to the DCWP or its decision whatsoever. Mr. Ulrich was not working for the DCWP in 2020 when the agency began its investigation, or in 2021 when the DCWP issued the Nonrenewal Letter, or at any point during the pendency of Plaintiff's case.^[FN14] As such, Plaintiff has altogether failed to connect the facts that are alleged in the Indictments to the DCWP's decision, and Plaintiff's attempts to backdate and impute the alleged conduct of an indicted public official onto the agency at large are wholly insufficient. Ultimately, there is nothing in the Indictments that constitutes new evidence to support Plaintiff's argument that it did not have a full and fair opportunity to litigate the issue of the DCWP's decision to deny Plaintiff's renewal application. Because the entirety of Plaintiff's complaint turns on this determination that was raised, necessarily decided and material in the first two actions, there are simply no issues left for Plaintiff to litigate.

Assuming arguendo that the issues raised in this action were not precluded by Plaintiff's previous actions, Plaintiff's complaint nevertheless fails. In addition to the specific pleading deficiencies discussed below, another major hurdle that is insurmountable is the fact that at the core of Plaintiff's complaint is a challenge to an agency determination (NYSCEF Doc No. 2, verified complaint ¶ 10 ["it is a fundamental principal of our justice system that an agency's determination cannot be the produce of corruption"]). While Plaintiff is insistent that the decision was the product of corruption, albeit without any factual support, Plaintiff concedes that it overcharged its customers (id. ¶¶ 11, 30, 38). Thus, even if this court were to review the complaint without regard to the preclusive effect of the prior factual and legal findings, the agency's determination would nevertheless stand unless it lacked support in the record (Cohen v State, 2 AD3d 522, 525 [2d Dept 2003] ["even if different conclusions could be reached as a result of conflicting evidence, a court may not substitute its judgment for that of the agency where the agency's determination is supported by the record"]; Daniel P. Malley & Argyle Home Imp., Inc. v Farley, 32 Misc 3d 819, 825, 2011 NY Slip Op 21232 [Sup Ct, NY County 2011] ["The standard of whether a given determination is arbitrary and capricious 'requires the court to assess whether the action in question was taken without regard to the facts'"]. In this instance, Plaintiff has not connected Mr. Mazzio or Mr. Ulrich to the DCWP or its decision. Plaintiff concedes that it overcharged its customers. The DCWP acted within its authority when it investigated Plaintiff and found that it violated certain sections of the Code and the Rules of the City of New York (E. Coast Customs Auto., Inc. v New York City Dep't of Consumer & Worker Prot., 205 AD3d 536, 537 [1st Dept 2022]).^[FN15] On this record, the court could not say that the [*10]DCWP's determination was made without regard to the facts (Flacke v Onondaga Landfill Sys., Inc., 69 NY2d 355, 363 [1987] ["Moreover, where, as here, the judgment of the agency involves factual evaluations in the area of the agency's expertise and is supported by the record, such judgment must be accorded great weight and judicial deference"]).

Next, Plaintiff's complaint fails because of pleading deficiencies. To plead a cause of action for tortious interference with a contract, a plaintiff must plead: "(1) the existence of 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" (C.H.A. Design Exp. [H.K.] Ltd. v Miller, 191 AD3d 459 [1st Dept 2021]; see also NBT Bancorp Inc. v. Fleet/Norstar Fin. Grp., Inc., 87 NY2d 614, 621 [1996] ["Thus, where there is an existing, enforceable contract and a defendant's deliberate interference results in a breach of that contract, a plaintiff may recover damages for tortious interference with contractual relations even if the defendant was engaged in lawful behavior"]). "Where there has been no breach of an existing contract, but only interference with prospective contract rights, however, plaintiff must show more culpable conduct on the part of the defendant (NBT Bancorp Inc., 87 NY2d at 621; see also Thome v Alexander & Louisa Calder Found., 70 AD3d 88, 108 [1st Dept 2009] ["A claim for tortious interference with prospective business advantage must allege that: (a) the plaintiff had business relations with a third party; (b) the defendant interfered with those business relations; (c) the defendant acted with the sole purpose of harming the plaintiff or by using unlawful means; and (d) there was resulting injury to the business relationship"]).

Unlawul or "[w]rongful means include[s] physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure; they do not, however, include persuasion alone" (Carvel Corp. v Noonan, 3 NY3d 182, 192 [2004]; Guard-Life Corp. v S. Parker Hardware Mfg. Corp., 50 NY2d 183, 191 [1980]). Moreover, actions taken with the dual intention of harming the plaintiff while benefitting the defendant are inadequate to plead tortious interference with business relations (Thome, 70 AD3d at 108).

Critically, both tortious interference with contract and tortious interference with business advantage, require a plaintiff to plead factual allegations that demonstrate that the defendants' conduct is the but for cause of plaintiff's damages (Miller v Livanis, 189 AD3d 446 [1st Dept 2020]; Pursuit Inv. Mgmt. LLC v Alpha Beta Cap. Partners, L.P., 127 AD3d 580, 581 [1st Dept 2015]; Burrowes v Combs, 25 AD3d 370, 373 [1st Dept 2006]). "It is well established in our law that 'but for' causation, or causation in fact, is "[t]he cause without which the event could not have occurred" (Burlington Ins. Co. v. NYC Transit Auth., 29 NY3d 313, 321 [2017]).

In this instance, Plaintiff has only pleaded facts that demonstrate that it had contracts with third parties (NYSCEF Doc No. 2, verified complaint ¶¶ 42, 43, 80) and that Plaintiff was damaged when its license was not renewed (id. ¶¶ 36, 37, 40, 43, 48, 50, 60, 84, 85).^[FN16] Plaintiff fails to allege facts that demonstrate that the City had knowledge of its contracts or that its contracts were even breached. Plaintiff does not include any terms of the alleged contract(s) nor any factual allegations about how these specific terms were breached. At most, Plaintiff alleges that its contracts were terminated because its license was not renewed (id. ¶¶ 36, 37, 40, 43, 82). Without any terms before it, the court cannot say whether termination constitutes a breach.

Fatally, Plaintiff has failed to allege any facts demonstrating that the City engaged in conduct directed toward the Port Authority or the MTA with the intent to induce them to breach their contracts with Plaintiff—assuming, for the sake of argument, that any such breach occurred. (Carvel, 3 NY3d at 192 [tortious conduct is directed at the third-party]). It is clear that Plaintiff believes that corruption was afoot, but "plaintiff must support [its] claim with more than mere speculation" (245 E. 19 Realty LLC v 245 E. 19th St. Parking LLC, 223 AD3d 604, 607—08 [1st Dept 2024]; Burrowes, 25 AD3d at 373 ["In addition to offering only scant speculation without the support of relevant facts, plaintiff has failed to allege that but for defendants' actions Ms. Blige would have continued her contract with plaintiff"]; Washington Ave. Assocs., Inc. v Euclid Equip., Inc., 229 AD2d 486, 487 [2d Dept 1996] ["The plaintiff's contention that Euclid breached the lease because of the appellant's actions, without a factual basis to support it, was insufficient to state a cause of action against the appellant for tortious interference with contractual relations"]).

To the extent that Plaintiff needs to show more culpable conduct to state a cause of action for tortious interference with prospective economic advantage, again, Plaintiff fails to advance any facts demonstrating that the City engaged in any wrongful conduct with the sole purpose of harming Plaintiff (Valkyrie AI LLC v PriceWaterhouseCoopers LLP, 233 AD3d 460, 462 [1st Dept 2024] [for tortious interference with prospective business "it must be affirmatively alleged that the defendant's conduct was motivated solely by malice or to inflict injury by unlawful means going beyond mere self-interest or other economic considerations"]). Plaintiff's allegations that the City investigated Plaintiff (NYSCEF Doc No. 2, verified complaint ¶ 10, 31, 36, 47), that the City issued a penalty more serious than was warranted (id. ¶¶ 11, 37), and that the City appealed Justice James' decision to the Appellate Division, First Department (id. ¶¶ 17, 30, 37, 39, 50, 76, 102) is not conduct that evinces an intent to harm. Moreover, these allegations do not demonstrate that the City's actions were the but for cause of Plaintiff's damages.

Finally, in New York, there is no independent cause of action for civil conspiracy (Abacus Fed. Sav. Bank v Lim, 75 AD3d 472, 474 [1st Dept 2010] ["New York does not recognize an independent cause of action for conspiracy to commit a civil tort" [. . .] "[a]llegations of conspiracy are permitted only to connect the actions of separate defendants with an otherwise actionable tort"]). Thus, without any predicate causes of action, Plaintiff has not stated a cause of action for civil conspiracy against the City. Accordingly, Plaintiff's first, second, and fifth causes of action are dismissed as to the City.

To state a cause of action for prima facie tort, the plaintiff must allege "(1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful" (Freihofer v Hearst Corp., 65 NY2d 135, 142—143 [1985]). "There can be no recovery under this theory 'unless malevolence is the sole motive for defendant's otherwise lawful act or, in [other words], unless defendant acts from disinterested malevolence'" (Kickertz v New York Univ., 110 AD3d 268, 277 [1st Dept 2013]; WFB Telecommunications, Inc. v NYNEX Corp., 188 AD2d 257, 258 [1st Dept 1992] ["Central to the cause of action for prima facie tort is that the defendant's intent have been solely to injure plaintiff, i.e., that defendant have acted from "disinterested malevolence"]). Finally, "[a] critical element of the cause of action is that plaintiff suffered specific and measurable loss, which requires an allegation of special damages" (Freihofer, 65 NY2d at 143; Britt v City of New York, 151 AD3d 606, 607 [1st Dept 2017] ["plaintiff does not identify or itemize with any specificity the special damages he allegedly suffered that are encompassed within the prima facie tort claim"]; Wehringer v Helmsley-Spear, Inc., 91 AD2d 585, 586 [1st Dept 1982] ["bare and conclusory allegations of damages, will not state a cause of action for prima facie tort"]).

Plaintiff's complaint is devoid of any facts demonstrating that the City acted with the intent to harm Plaintiff. Plaintiff's allegations that the City investigated Plaintiff (NYSCEF Doc No. 2, verified complaint ¶ 10, 31, 36, 47), that the City issued a penalty more serious than was warranted (id. ¶¶ 11, 37), and that the City appealed Justice James' decision to the Appellate Division, First Department (id. ¶¶ 17, 30, 37, 39, 50, 76, 102) is not conduct that evinces an intent to harm. Accordingly, Plaintiff's third cause of action is dismissed.

To maintain a cause of action in negligence, "a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom" (Pasternack v Lab's Corp. of Am. Holdings, 27 NY3d 817, 825 [2016]). "The question of whether a defendant owes a legally recognized duty of care to a plaintiff is the threshold question in any negligence action" (On v BKO Exp. LLC, 148 AD3d 50, 53 [1st Dept 2017]). "In the absence of a duty, as a matter of law, there can be no liability" (Pasternack, 27 NY3d at 825). When a negligence claim is asserted against a municipality, the court must also determine whether the allegations implicate the "special duty rule" (Ferreira v City of Binghamton, 38 NY3d 298, 208 [2022]). To determine whether the special duty rule applies, the court must first determine "whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose" (id.). "[I]f the action challenged in the litigation is governmental, the existence of a special duty is an element of the plaintiff's negligence cause of action" (id.).

"A municipality's varied functions may be interspersed with both governmental and proprietary elements and, therefore, the determination of the primary capacity under which a governmental agency was acting turns solely on the acts or omissions claimed to have caused the injury" (id. at 309 [internal quotation marks omitted]). Where a government entity performs a "purely proprietary role," that is, where its activities essentially substitute for or supplement traditionally private enterprises, it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties (id. at 309 [giving as an example where a government entity acts as a landlord]). Conversely, a governmental entity performs a governmental function [*12]"when its acts are undertaken for the protection and safety of the public pursuant to the general police powers," the court must determine the extent to which the municipality owed a special duty to the injured party (id. ["Examples of governmental functions include fire protection services, the oversight of juvenile delinquents, the issuance of building permits or certificates of occupancy, garbage collection, and the provision of front-line emergency medical services"). "It is the plaintiff's obligation to prove that the government defendant owed a special duty of care to the injured party because duty is an essential element of the negligence claim itself (Applewhite v Accuhealth, Inc., 21 NY3d 420, 426 [2013]). In situations where the plaintiff fails to meet this burden, the analysis ends and liability may not be imputed to the municipality that acted in a governmental capacity" (Applewhite, 21 NY3d at 426).

Here, Plaintiff alleges that the City breached its special duty of care owed to Plaintiff as a licensee because the decision to not renew Plaintiff's license was the product of corruption and undue influence (NYSCEF Doc No. 2, verified complaint ¶¶ 109-18). Plaintiff does not cite to any case law holding that Plaintiff's status as a licensee creates a special duty between Plaintiff and the City and instead argues that the Municipal Defendants "have a duty of care running directly to the Plaintiff and the Complaint alleges that the Defendants Ulrich and Mazzio engaged in a scheme to defraud Plaintiff of the intangible right to the honest services of its public officials" (NYSCEF Doc No. 85, mem of law at 17). The court finds that Plaintiff failed to meet its burden of demonstrating a special duty or that it need not plead one. Moreover, the DCWP's license provisions are designed to protect public safety, rather than the licensee (Strassburger v Unicarriers Americas Corps., 225 AD3d 921, 924 [2d Dept 2024] [plaintiff failed to demonstrate a special duty because inspections by the port authority "were designed to protect public safety rather than the safety of particular individuals" [. . .] "the forklift inspections performed by the Port Authority and the issuance of the license plate were an exercise of the Port Authority's police power for the protection and safety of the public rather than any authority conferred by a landlord-tenant relationship"]). Although Plaintiff is deeply aggrieved by the DCWP's decision, Plaintiff has not alleged any facts demonstrating that the DCWP's decision was the product of corruption as compared to a rational penalty because of Plaintiff's violations. Accordingly, without any factual allegations to support a special duty, breach, or causation, Plaintiff's fourth cause of action is dismissed.

Finally, Plaintiff fails to state a cause of action for violations of 42 U.S.C. §§ 1983 or 1985. Plaintiff's conclusion that "in violation of 42 U.S.C. 1985, Defendants conspired to violate the provisions of 42 U.S.C. 1983, in that [. . .] they knowingly agreed and conspired together and with others to deprive the Plaintiff of its civil rights, of due process, and equal protection of the laws" without any factual allegations is insufficient to state a cause of action under 42 U.S.C. 1983 or 1985 (NYSCEF Doc No. 2, verified complaint ¶ 136).

Under 42 U.S.C. § 1983, "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage [ . . . ] subjects, or causes to be subjected, any citizen of the United States [ . . . ] to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured" (42 U.S.C. § 1983). Individuals may be liable under 42 U.S.C. § 1983 for their own actions, but local governments are only responsible for "their own illegal acts" (Connick v Thompson, 563 US 51, 60 [2011]; see Fowler v City of New York, 156 AD3d 512, 513 [1st Dept 2017] ["Dismissal was warranted where [*13]plaintiffs [. . .] do not 'allege particular facts indicating that each of the individual defendants [were] personally involved in the deprivation of [. . .] plaintiffs' constitutional rights']).

Thus, liability may only be imposed on the City for its own alleged violations of a plaintiff's constitutional rights by establishing a direct causal link between a municipal policy or custom and the alleged constitutional deprivation" (Holland v City of Poughkeepsie, 90 AD3d 841, 847 [2d Dept 2011], citing Canton v Harris, 489 US 378, 385 [1989]; Connick, 563 US 51 [2011]; Monell v New York City Dept. of Social Servs., 436 US 658, 694 [1978]). Below the policy making level, a municipality may not be held liable under 42 U.S.C. § 1983 for unconstitutional actions by its employees on the basis of respondeat superior (DeCarlo v Fry, 141 F3d 56, 61 [2d Cir 1998]). Plaintiff has not alleged a policy or custom that led to the alleged deprivation. Thus, without Monell, and with no ability to reach the City through respondeat superior, Plaintiff's federal causes of action against the City cannot stand.

With respect to Plaintiff's due process allegation, Plaintiff fails to allege a protected property interest (Testwell, Inc. v New York City Dep't of Bldgs., 80 AD3d 266, 274 [2010]), or that the City acted in a manner that demonstrates a "gross abuse of governmental authority" (Bowen v Nassau Cnty., 135 AD3d 800, 801 [2d Dept 2016]; Bower Assocs. v Town of Pleasant Valley, 304 AD2d 259, 264 [2d Dept 2003], affd, 2 NY3d 617 [2004] ["In order for there to be liability under 42 USC § 1983 the plaintiff must show that it was deprived of its property interest by conduct which is 'arbitrary as a matter of federal constitutional law' [that is] 'so outrageously arbitrary as to constitute a gross abuse of governmental authority'"]). To the extent that Plaintiff alleges that it was deprived due process throughout its first three lawsuits because it did not know about the alleged corruption, Plaintiff has not pointed to any case law that supports such a claim, nor does Plaintiff allege any facts that demonstrate that the City did anything during Plaintiff's first three lawsuits to constitute a gross abuse of governmental authority (NYSCEF Doc No. 2, verified complaint ¶ 11, 59, 92). Plaintiff does not allege facts demonstrating that the City knew during the pendency of the prior suits that Mr. Ulrich was allegedly engaging in bribery, and Plaintiff does not allege that the City withheld information during the prior suits. Moreover, despite insisting that "the DCWP's decision to appeal Hon. James' decision was the product of corruption," Corporation Counsel was within its rights to appeal the decision just as Plaintiff was within its rights to appeal the Appellate Division, First Department's decision (id. ¶ 17, 30, 37, 39, 50, 76, 102). Without the requisite factual predicate, Plaintiff's complaint fails to allege a gross abuse of governmental authority.

To the extent that Plaintiff's claim can be construed as one for procedural due process, Plaintiff has not alleged what process it was owed and what process it was denied (Daniel P. Malley & Argyle Home Imp., Inc., 32 Misc 3d at 825 [a plaintiff "must first identify a property right, second show that the state has deprived him of that right, and third, show that the deprivation was effected without due process"]). Plaintiff also fails to allege a cognizable differential treatment claim (Griffin v Breckenridge, 403 US 88, 102—03 [1971]; Mass v McClenahan, 893 F Supp 225, 231 [SD NY 1995] ["To establish a claim under § 1985[3], plaintiff must show that the defendants (i) engaged in a conspiracy; (ii) acted for the purpose of depriving a person of equal protection of the laws or equal privileges and immunities; and (iii) acted in furtherance of the conspiracy; (iv) whereby plaintiff was injured with respect to his person or property, or was deprived of a right or privilege of a citizen of the United States"]). Accordingly, Plaintiff's sixth cause of action is dismissed.

The court has considered all other arguments and finds them to be without merit.

The City also moves for sanctions and costs pursuant to Title 22 of the New York Codes, Rules, and Regulations § 130-1.1. Pursuant to 22 NYCRR § 130-1.1, "[t]he court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct" (22 NYCRR § 130-1.1[a]). Frivolous conduct is conduct that is: (i) without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (ii) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (iii) asserts material factual statements that are false (22 NYCRR § 130-1.1[c]). The City argues that Plaintiff and its counsel engaged in conduct that warrants sanctions and costs because Plaintiff has challenged the DCWP's decision in four different lawsuits, Judge Matsumoto instructed Plaintiff to dismiss its claims against the Municipal Defendants and to bring an action in state court against only the Mike's Defendants and Mr. Ulrich, and that on the record Plaintiff's counsel agreed to adhere to Judge Matsumoto's instruction (NYSCEF Doc No. 16, mem of law at 20-3; see also NYSCEF Doc No. 27). In opposition, Plaintiff argues that the City's argument "need not be considered based upon the undisputed facts alleged in the complaint which were not available in the prior proceedings" (NYSCEF Doc No. 85, mem of law at 20).

While Plaintiff does little to demonstrate that its conduct was not frivolous- particularly with respect to representations made on the record before the Judge Matsumoto- the court nevertheless finds that because of the complex legal landscape surrounding res judicata and Article 78, that it is at least conceivable that Plaintiff's counsel believed that the instant action was not without merit. Accordingly, the court finds that sanctions are not warranted; however, in the interests of justice, Plaintiff shall bear the costs associated with the Municipal Defendants' motion.

The Mike's Defendants move pursuant to CPLR §§ 3211(a)(1), (5), and (7) to dismiss Plaintiff's causes of action for: (i) tortious interference with contract, (ii) interference with prospective economic advantage, (iii) prima facie tort, and (iv) civil conspiracy.

As a threshold matter, the court finds that the Mike's Defendants have not met their burden of demonstrating that Plaintiff's complaint must be dismissed on statute of limitations grounds. "On a motion to dismiss a cause of action pursuant to CPLR § 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired" (Benn v Benn, 82 AD3d 548, 548 [1st Dept 2011]). In considering the motion, a court must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff" (Benn, 82 AD3d at 548). To satisfy its prima facie burden, the movant must establish when the plaintiff's cause of action accrued and that the time to file has expired (Lebedev v Blavatnik, 144 AD3d 24, 28 [1st Dept 2016]). The burden then shifts to the plaintiff to set forth evidentiary facts sufficient to establish or raise a question of fact as to whether the cause of action is timely by showing, e.g., that the statute of limitations was tolled, or was otherwise inapplicable, or that the action was commenced within the applicable limitations period (see Kitty Jie Yuan v 2368 W. 12th St., LLC, 119 AD3d 674, 674 [2d Dept 2014]).

The Mike's Defendants argue that Plaintiff's claims accrued in August 2020, when the DCWP began investigating Plaintiff (NYSCEF Doc No. 32, mem of law at 15-6). The Mike's Defendants argue that Plaintiff's causes of action are subject to a three-year statute of limitations, which expired on August 12, 2023 (id.). Plaintiff, on the other hand argues that it was injured in 2023 when it learned about the Indictments and/or when the alleged conduct occurred, January 5, 2021, to November 1, 2022 (NYSCEF Doc No. 67, mem of law at 14-5).

The causes of action for tortious interference with contract and prospective business advantage are subject to a three-year statute of limitations which accrues from the injury (CPLR § 214[4]; Kronos, Inc. v AVX Corp., 81 NY2d 90, 94 [1993] ["a tort cause of action cannot accrue until an injury is sustained"]; Thome, 70 AD3d at 108 [tortious interference is subject to three-year statute of limitations]). Prima facie tort is subject to a one-year limitation period (Havell v Islam, 292 AD2d 210, 210 [1st Dept 2002]). If Plaintiff was injured when the DCWP denied its renewal application on January 26, 2021 (id. ¶¶ 36, 37, 40, 43, 48, 50, 60, 84, 85) then Plaintiff's statute of limitations expired on January 26, 2022 and January 26, 2024. Plaintiff commenced its first action against the Mike's Defendants on January 26, 2024 (NYSCEF Doc No. 26). Plaintiff then voluntarily discontinued that action without prejudice on August 5, 2024, and commenced this action a little over one month after that, on September 19, 2024 (NYSCEF Doc No. 83, NYSCEF Doc No. 2). Neither the Mike's Defendants nor Plaintiff address CPLR § 205 applicability.

The court finds that the only injury Plaintiff alleges is the loss of its business because the DCWP denied its renewal application on January 26, 2021 (NYSCEF Doc No. 2, verified complaint ¶¶ 36, 37, 40, 43, 48, 50, 60, 84, 85). Therefore, based on Plaintiff's own statement of damages, its injuries arose as early as January 26, 2021 (id.). The court also finds that Plaintiff may not have been able to plead a cause of action for tortious interference, prima facie tort, or civil conspiracy until it learned about the conduct alleged in the Indictments (Kronos, Inc., 81 NY2d 90, 94 [1993] ["accrual occurs when the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint"]). Accordingly, the Mike's Defendants have not met their burden of demonstrating that Plaintiff's statute of limitations expired.

Next, the Mike's Defendants move to dismiss Plaintiff's complaint on the basis of pleading deficiencies. The court finds that Plaintiff has not stated a cause of action for tortious interference with contract because Plaintiff failed to plead facts demonstrating that the NYPD, Port Authority, or the MTA breached its contracts with Plaintiff (NYSCEF Doc No. 2, verified complaint ¶¶ 36, 37, 40, 43, 82; C.H.A. Design Exp. [H.K.] Ltd., 191 AD3d 459), or that the Mike's Defendants' conduct was the but for cause of the breach (assuming for the moment that Plaintiff pled a breach) (Influx Cap., LLC v. Pershin, 186 AD3d 1622, 1624 [2d Dept 2020] ["the plaintiff must specifically allege that the contract would not have been breached but for the defendant's conduct"]). Although Plaintiff's complaint details a litany of conduct, some directed at the NYPD, Port Authority, and the MTA (NYSCEF Doc No. 2, verified complaint ¶ 67-79), Plaintiff fails to connect that conduct to the loss of its business, which is inextricably linked to the DCWP's decision to not renew Plaintiff's license (see infra, section Discussion I[B][i]; NYSCEF Doc No. 2, verified complaint ¶ 36, 37, 40, 43, 48, 50, 60, 84, 85; Pursuit Inv. Mgmt. LLC, 127 AD3d at 581 ["plaintiffs did not allege that Harris's conduct was the 'but for' causation of their purported damages]; Burrowes, 25 AD3d at 373 ["In addition to offering only scant [*15]speculation without the support of relevant facts, plaintiff has failed to allege that but for defendants' actions Ms. Blige would have continued her contract with plaintiff"]). Moreover, Plaintiff cannot meet this pleading standard because Plaintiff concedes that it overcharged its customers in violation of the Code (NYSCEF Doc No. 2, verified complaint 11, 30, 38; 245 E. 19 Realty LLC, 223 AD3d at 607—08 [tortious interference with contract claim was properly dismissed where plaintiff's allegations were "conclusory, based on information and belief, and contradicted by affidavits"]).

The DCWP's decision to not renew Plaintiff's license because it was overcharging its customers in violation of the Code also renders Plaintiff's cause of action for tortious interference with prospective economic advantage insufficient (Slatkin v Lancer Litho Packaging Corp., 33 AD3d 421, 421 [1st Dept 2006] [cause of action for tortious interference with prospective economic advantage, [. . .] was properly dismissed upon a record establishing that plaintiffs' customers stopped doing business with plaintiffs at least in part because they were no longer able to contact them"]). Similar to Slatkin, although this a motion to dismiss, the record before the court demonstrates that the DCWP declined to renew Plaintiff's license because it was overcharging its customers in violation of the Code (NYSCEF Doc No. 2, verified complaint 11, 30, 38; Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977] ["When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one"]).

Further, Plaintiff also fails to allege facts that demonstrate that the Mike's Defendants' actions were undertaken with the sole intent to harm Plaintiff, as compared to benefitting themselves financially (Valkyrie AI LLC, 233 AD3d at 462 [for tortious interference with prospective business "it must be affirmatively alleged that the defendant's conduct was motivated solely by malice or to inflict injury by unlawful means going beyond mere self-interest or other economic considerations"]; Thome, 70 AD3d at 108 [actions taken with the dual intention of harming the plaintiff while benefitting the defendant are inadequate to plead tortious interference with business relations]). Affording Plaintiff every possible favorable inference, Plaintiff's allegation that the Mike's Defendants bribed Mr. Ulrich so that "[Mr.] Mazzio could regain control of the New York City Highways" demonstrates a dual motive to benefit himself and his company financially (NYSCEF Doc No. 2, verified complaint ¶¶ 10, 35; Thome, 70 AD3d at108 ["indeed by plaintiff's own theory of the case, defendants acted with the intent of benefitting themselves"]).

Plaintiff's failure to advance factual allegations that demonstrate that the Mike's Defendants acted with the sole intention of harming Plaintiff, also defeats Plaintiff's cause of action for prima facie tort (Kickertz, 110 AD3d at 277; WFB Telecommunications, Inc., 188 AD2d at 258).

Finally, without any predicate causes of action, Plaintiff cannot sustain its cause of action for civil conspiracy (Abacus Fed. Sav. Bank, 75 AD3d at 474). Accordingly, Plaintiff's complaint is dismissed as to the Mike's Defendants.

Lastly, Plaintiff's complaint fails against Mr. Ulrich for the same reasons it fails against the Mike's Defendants. As discussed infra, Plaintiff has not alleged facts demonstrating that the NYPD, Port Authority, or MTA breached—rather than merely terminated—their contracts with Plaintiff. (see infra, section Discussion I[B][i], II[B]). Affording Plaintiff every possible favorable inference that there was a breach, Plaintiff fails to connect Mr. Ulrich's conduct to that [*16]breach or to the DCWP's decision. Plaintiff's unsupported conclusion that, because Mr. Ulrich allegedly accepted bribes during 2021 and 2022, the DCWP must therefore have been corrupt in declining to renew Plaintiff's license or in appealing Justice James' decision, is speculative and wholly insufficient as a matter of law (245 E. 19 Realty LLC, 223 AD3d at 607—08; Burrowes, 25 AD3d at 373). Moreover, Plaintiff cannot allege facts that demonstrate that Mr. Ulrich's conduct was the but for cause of Plaintiff's damages because Plaintiff was overcharging its customers in violation of the Code, the DCWP was well within its investigatory and licensing authority when it denied Plaintiff's renewal license, and Corporation Counsel was well within its rights to appeal an unfavorable decision. Finally, the acts that are alleged do not demonstrate that Mr. Ulrich acted with the sole intention of harming Plaintiff, but rather with the sole intent of enriching himself economically (Thome, 70 AD3d at 108). Accordingly, Plaintiff has not alleged any facts that demonstrate that Mr. Ulrich acted with disinterested malevolence and fails to state a cause of action for prima facie tort (Kickertz, 110 AD3d at 277; WFB Telecommunications, Inc., 188 AD2d at 258). Without any predicate torts, Plaintiff has not stated a cause of action for civil conspiracy (Abacus Fed. Sav. Bank, 75 AD3d at 474).

In closing, this court, like the courts before it, recognizes Plaintiff's deep frustration with the DCWP's decision not to renew its license. However, "frustrations are not a basis [. . .] to set aside [the DCWP's] rational determination" (Runway Collision Specialists, Inc. v The New York City Dept. of Consumer and Worker Protection, 2024 NY Slip Op 30436[U] [Sup Ct, NY County 2024]). Plaintiff was caught overcharging its customers in violation of the DCWP's licensing provisions. This finding is supported by the record and was upheld by three different courts. That Plaintiff learned of the alleged bribery more than a year after the DCWP notified Plaintiff of its intent not to renew Plaintiff's license is insufficient to overcome the doctrines of res judicata, judicial deference, or the pleading standards set forth in CPLR § 3211. As Robert Louis Stevenson aptly observed, "sooner or later everyone sits down to a banquet of consequences."

Accordingly, it is

ORDERED that Motion Seq. 001, by Defendants the New York City Department of Consumer Worker and Protection, Vilda Vera Mayuga, and the City of New York to dismiss Plaintiff's complaint and all cross-claims is GRANTED; and it is further

ORDERED that Defendants the New York City Department of Consumer Worker and Protection, Vilda Vera Mayuga, and the City of New York's application for sanctions is granted in part, and solely to the extent that Plaintiff shall bear the costs associated with Defendants the New York City Department of Consumer Worker and Protection, Vilda Vera Mayuga, and the City of New York's motion; and it is further

ORDERED that Motion Seq. 002, by Defendants Michael Mazzio and Mike's Heavy Duty Towing, Inc. to dismiss Plaintiff's complaint and all cross-claims is GRANTED; and it is further

ORDERED that Motion Seq. 003, by Defendant Eric Ulrich to dismiss Plaintiff's complaint and all cross-claims is GRANTED; and it is further

ORDERED that counsel for the moving parties shall serve a copy of this order with notice of entry upon the Clerk of the Court and the Clerk of the General Clerk's Office; and it is further

ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on [*17]Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website); and it is further

ORDERED that, once served, the Clerk of the Court shall enter judgment dismissing all claims and cross-claims as against Defendants the New York City Department of Consumer Worker and Protection, Vilda Vera Mayuga, and the City of New York, Defendants Michael Mazzio and Mike's Heavy Duty Towing, Inc., and Defendant Eric Ulrich.

This constitutes the decision and order of the court.