The Court has considered the following in connection with its determination:1. Defendant’s Notice of Motion To Dismiss with Affirmation In Support, Exhibits A and B and Memorandum of Law;2. Plaintiff’s Memorandum of Law In Opposition To Defendant’s Motion To Dismiss; and3. Defendant’s Reply Memorandum of Law In Further Support of Defendant’s Motion To Dismiss.
*1 In this action, Plaintiff Airweld, Inc., alleges that Defendant, AIRGAS U.S.A., LLC d/b/a AIRGAS, INC., interfered with two contracts in which Plaintiff entered with its two customers, Check-Mate and Felber Metal Fabrication. The Complaint contains one cause of action: tortious interference with contract as concerns these two customers.Defendant moves for an order pursuant to CPLR 3211(a)(7) dismissing the Complaint in its entirety, for failure to state a claim for relief. When a party moves under CPLR 3211(a)(7) for dismissal based on the failure to state a cause of action, the test is whether the pleading states a cause of action, not whether Plaintiff has a cause of action (Sokol v. Leader, 74 AD3d 1180, 904 NYS2d 153 [2nd Dept 2010]. A court must determine whether, accepting the facts as alleged in the pleading as true and according the Plaintiff the benefit every favorable inference, those facts fit within any recognizable legal theory (Leon v. Martinez, 84 NY2d 83, 614 NYS2d 972 [1994]). “Whether a plaintiff can ultimately establish [his or her] allegations is not part of the calculus in determining a motion to dismiss” (EBCI, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19, 799 NYS2d 170 [2005]). However, “conclusory averments of wrongdoing are insufficient to sustain a complaint unless supported by allegations of ultimate facts” (Muka v. Greene County, 101 AD2d 965, 965, 477 NYS2d 444 [4th Dept 1984]; see DiMauro v. Metropolitan Suburban Bus Auth., 105 AD2d 236, 483 NYS2d 383 [2nd Dept 1984]; Melito v. Interboro-Mutual Indem. Ins., Co., 73 AD2d 819, 423 NYS2d 742 [4th Dept 1979]; Greschler v. Greschler, 71 AD2d 322, 422 NYS2d 718 [2nd Dept. 19799]).To succeed on a claim for tortious interference with contractual relations, a plaintiff must show the existence of a valid contract between the plaintiff and a third-party, and the defendant’s knowledge of such contract, the defendant’s intentional and improper procurement of the breach of such contract by the third-party, and damages (see White Plains Coat & Apon Co., Inc. v. Cintas Corp., 8 NY3d 422, 835 NYS2d 530 [2007]; NBT Bancorp v. Fleet/Norstar Fin. Group, 87 NY2d 614, 641 NYS2d 581 [1996]; Lama Holding Co. v. Smith Barney, 88 NY2d 413, 646 NYS2d 76[1996]; Miller v. Theodore-Tassy, 92 AD3d 650, 938 NYS2d 172 [2nd Dept. 2012]; Dune Deck Ownerns Corp. v. Liggett, 85 AD3d 1093, 927 NYS2d 125 [2nd Dept. 2011]).
