70 A.D.2d 1041 | N.Y. App. Div. | 1979
Lead Opinion
— Order modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Special Term properly dismissed plaintiffs, Schlottman Agency, Inc., first cause of action in its complaint against defendants Aetna Casualty and Surety Company and the Standard Fire Insurance Company. Further, the third cause of action may not be construed to state a cause of action for prima facie tort since no basis exists for plaintiff to allege that defendants’ acts are without excuse or justification legally sufficient to constitute this intentional tort (ATI, Inc. v Ruder & Finn, 42 NY2d 454, 459-461). The second and third causes of action claim that defendants violated section 340 of the General Business Law of New York (the Donnelly Act). Free competition is the public policy protected by section 340 and wrongful interference with it is prohibited (Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621, 625-626). All that need be shown is that the tendency of the alleged arrangement or combination will be or has been to lessen competition within the relevant market (Columbia Gas of N. Y. v New York State Elec. & Gas Corp., 28 NY2d 117, 128; Hsing Chow v Union Cent. Life Ins. Co., 457 F Supp, 1303, 1306-1308; Eagle Spring Water Co. v Webb & Knapp, 236 NYS 2d 266, 276). Upon a motion to dismiss, a complaint is deemed to allege whatever can reasonably be implied from its statements— and not whether the allegations can be established — considering the complaint as a whole (4 Weinstein-Korn-Miller, NY Civ Frac, par 3211.36, p 32-113; Siegel, New York Practice, § 265; Foley v D’Agostino, 21 AD2d 60, 65). "Motions to dismiss should not be granted unless it is very clear that there can be no relief under any of the facts alleged in the pleading for the relief requested or for other relief’ (Richardson v Coy, 28 AD2d 640, mot with
Dissenting Opinion
(dissenting). I concur with the majority’s decision affirming dismissal of the first cause of action and their holding that the third cause of action, taken alone, does not state a cause of action for prima facie tort. I would, however, dismiss the second and third causes of action in their entirety on the authority of State of New York v Mobil Oil Corp. (38 NY2d 460, 5-2 decision). The complaint in Mobil alleged that defendant-respondent Mobil "has, through contracts, agreements, arrangements and combinations, conducted a systematic and deliberate policy of price discrimination in the sale of gasoline to its dealers, and thus to the public [by granting] discriminatory rebates (so-called 'dealer aid’) to certain of its dealers within each area * * * The effects and results of the aforementioned contracts, agreements, arrangements and combinations have been and are, among others: a) To prevent many Mobil dealers from competing effectively against other Mobil dealers and dealers in other brands * * *; b) To enable Mobil to restrain competition by conducting price wars in some areas while maintaining artificially high prices in other areas, to the serious detriment of dealers and the public; c) To substantially restrain competition and trade and unduly interfere with the free exercise of activity in the conduct of business by the various Mobil dealers”. As stated by Judge Gabrielli in his dissent in Mobil (supra, p 466): "The vital issue posed is whether allegations that a corporation substantially restrained competition and trade, unduly interfered with the free exercise of commercial activity and injured the public of this State by artificially manipulating the price of gasoline through discriminatory pricing practices, states a cause of action within the purview of the Donnelly Act (General Business Law, § 340, et seq.). ” The majority, after reviewing the history of the Donnelly Act, observed that "never in the 80-year history of the statute has it been held that a practice of price discrimination such as that alleged here, even if it be further asserted that it had the effect of restraining trade, constitutes a violation of subdivision 1 of section 340”, and concluded that "a systematic and deliberate practice of price discrimination by respondent oil company in the sale of gasoline to its dealers as alleged * * * in this case would not fall within the proscription of our State’s Donnelly Act”. (State of New York v Mobil Oil Corp., supra, pp 461-462, 465). The complaint in the case before us, even under the most liberal of constructions, does not allege more than the type of price discrimination which the Mobil court held inadequate to state a cause of action. Reduced to its essentials, the second cause of action alleges that defendants (not competitors of plaintiff) terminated plaintiffs profit-sharing agreement for the purpose of coercing plaintiff into participation in defendants’ customer billing service and refused to offer said service to plaintiff on the same advantageous terms offered to plaintiffs competitors for the purpose of injuring plaintiffs business. Plaintiff claims that as a result thereof it has
