On July 13, 2023, the First Department issued a decision in Iberdrola Energy Projects v. MUFG Union Bank, N.A., 2023 NY Slip Op. 03841, holding that a plaintiff was not required to plead the inapplicability of an affirmative defense to an aiding and abetting and conspiracy claim, explaining:
The court correctly denied defendants’ motions to dismiss the aiding and abetting and conspiracy claims. The aiding and abetting and conspiracy claims will stand or fall with the underlying tort, that is, the alleged tortious interference by nonparty Oaktree Capital Management L.P. (Oaktree) with the Engineering, Procurement and Construction (EPC) contract between plaintiff and nonparty Footprint Power Salem Harbor Development L.P. (Footprint). Defendants, as lenders, do not contend that plaintiff failed to plead the underlying elements of the aiding and abetting and conspiracy claims other than to argue that plaintiff is unable to establish the underlying tortious interference claim against Oaktree. However, under the circumstances, plaintiff was not required to affirmatively plead around an anticipated economic interest defense, since the economic interest defense is not an element of an aiding and abetting or conspiracy claim, but rather a defense to the underlying tort. Defendants make no other arguments that would require dismissal of these claims.
(Internal quotations and citations omitted).