UNITED STATES COURT OF APPEALS

F O R THE SECOND CIRCUIT

S U M M A R Y ORDER

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C O L L A T E R A L ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit,

held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in

t h e City of New York, on the 7th day of December, two thousand and six.

PRESENT:

H O N . THOMAS J. MESKILL

H O N . RALPH K. WINTER

HON. PETER W. HALL

C i r c u i t Judges.

P e t r Torcik,

P l a i n ti f f, Pro Se-Appellant,

-v.- N o . 05-5144

The Chase Manhattan Bank, Inc.

Defendant-Appellee,

D o e s 1-10

De fenda nts .

FO R PLAINTIFF-APPELLANT: Petr Torcik, 156 Duncan Ave. Apt. #5, Jersey

C i t y, N.J. 07306.

F O R RESPONDENT: Da ra L. Rosenbaum, Quirk and Bakalor, P.C., 8 4 5 Third Avenue, 15th Floor, New York, NY .

App eal from the United States District Court for the Eastern District of New York (Bl ock , J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, A N D DECREED that the judgment of the District Court be and hereby is AFFIRMED.

Plaintiff-Appellant pro se Petr Torcik appeals from a September 7, 2005, judgment of the United States District Court for the Eastern District of New York (Block, J.) granting summary ju dgment to defendant. We assume the parties' familiarity with the facts, the procedural history, and the scope of the issues presented on appeal.

Torcik brought suit against Chase Manhattan Bank ("Chase"), asserting claims of negligence and tortious interference with contract. In March, 1999, Vladamir Stepanik entered into a contract with CityNet, Ltd. ("CityNet"), a Czech Corporation. Torcik was possibly a third party beneficiary of this contract. In November, 1999, Torcik gave his social security number to an employee of Chase. That employee, in calling a third party verification service, misread the social security number Torcik supplied. When the verification service noted the number did not "match," the Chase employee added a notation to Torcik's account, flagging him as a "fraud suspect." As a result of this notation, Torcik claims, CityNet cancelled the contract with Stepanik.

We review a district court's grant of summary judgment de novo, in the light most favorable to the nonmoving party. Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999).

Torcik's negligence claim fails. To sustain a claim for negligence, a plaintiff must show, inter alia, proximate causation, a component of which demands that "the negligence was a substantial foreseeable factor" in precipitating his injury. Johnson v. Bryco Arms, 304 F. Supp.

2d 383, 395 (E.D.N.Y. 2004). In this case, Chase did not know of Stepanik's contract, and thus could not have foreseen the harm caused by its breach.

As an alternative, Torcik assays a theory of res ipsa loquitur. This theory requires plaintiff at least to show breach was caused by an "instrumentality within the exclusive control of the defendant." Stone v. Courtyard Management Corp., 353 F.3d 155, 157 (2d Cir. 2003). But here, Torcik indicates the power to cancel the contract lied within a third party's--C it yNet's-- cont rol. This fact precludes the success of a res ipsa theory.

Torcik fails to show interference with contractual relations. That tort consists of four elements, including "(2) defendant's knowledge [of a contract between plaintiff and a third party]" and "(3) defendant's intentional inducement of . . . breach." Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94 (1993). As noted, Chase did not know of the contract. Moreover, nothing indicates Chase had intent to cause the breach.

Finally, Torcik argues he did not receive notice regarding Chase's motion for summary judgment, as required by Local Rule 56. To the contrary, Chase served the requisite notice to four separate addresses and Torcik acknowledges he received the same.

We have considered each of Torcik's remaining claims, and conclude they are without merit, substantially for the reasons stated in the District Court's decision. Accordingly, the ju dgment of the District Court is hereby AFFIRMED.

FOR THE COURT: Thomas Asreen, Acting Clerk By: