DeMicco Bros., Inc. v Consolidated Edison Co. of N.Y., Inc.
2008 NY Slip Op 01819 [48 AD3d 376]
February 28, 2008
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, April 16, 2008


DeMicco Bros., Inc., Respondent,
v
Consolidated Edison Company of New York, Inc., et al., Appellants, et al., Defendant.

[*1] Richard W. Babinecz, New York City (Frank A. Lisi of counsel), for Consolidated Edison Company of New York, Inc., appellant.

Kirkland & Ellis LLP, New York City (Joseph Serino, Jr. of counsel), for Empire City Subway Co., Ltd., appellant.

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered May 25, 2006, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment as to liability for prima facie tort, unanimously reversed, on the law, without costs, and the motion denied.

The court improperly inferred disinterested malevolence, as a matter of law, from defendants' alleged breach of their common-law duty to remove the overhead wires that plaintiff claims were interfering with its public works contract with the City of New York. Defendants' proffered justification for their failure to remove the subject wires, i.e., that in numerous locations plaintiff's work had been completed before defendants received the City's orders directing them to relocate the wires, raised a triable issue whether the failure to remove the wires was motivated solely by a desire to harm plaintiff (see Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 333 [1983]; L/M Ninety CM Corp. v 2431 Broadway Realty Co., 170 AD2d 373 [1991]). [*2]Concur—Mazzarelli, J.P., Andrias, Saxe, Gonzalez and Sweeny, JJ.