Opinion
007876/2004.
Decided June 5, 2006.
Motion pursuant to CPLR 3212 by the defendants Bridgestone Firestone North American Tire, LLC for summary judgment dismissing the complaint and for the imposition of sanctions pursuant to 22 NYCRR § 130-1.1.
Motion pursuant to CPLR 3212 by the defendant Hempstead Tire Service, Inc. for summary judgment dismissing the complaint and for the imposition of sanctions pursuant to 22 NYCRR § 130-1.1.
The plaintiff claims in substance, that the defendants Bridgestone Firestone North American Tire, LLC ["Bridgestone"], and codefendant Hempstead Tire Service, Inc [Hempstead"], conspired to withhold a certain tire model from the plaintiff, which later prevented the plaintiff from including the tire in a bid submitted to the New York City Department of Citywide Services ["DCAS'] ( e.g., General Business Law § 340).
The DCAS bid was awarded to Hempstead, a dealer of Bridgestone tires and competitor of plaintiff, who was given access to the disputed tire model. The plaintiff commenced the within action against both Bridgestone and Hempstead.
The plaintiff's second amended complaint claims violation of General Business Law § 340, the Donnelly Act, and additional causes of action for tortious interference with prospective business relations, and fraudulent misrepresentation.
The defendants Bridgestone and Hempstead now move and cross move respectively for, inter alia, summary judgment dismissing the complaint. The motions should be granted to the extent indicated below.
In the first and fourth causes of action alleging violation of General Business Law § 340 (the "Donnelly Act"), plaintiff has failed to identify, analyze or even make pertinent reference to, the relevant product market or the manner in which the alleged misconduct was injurious to competition within that market.
Significantly, "[a] party asserting a violation of the Donnelly Act is required to (1) identify the relevant product market; (2) describe the nature and effects of the purported conspiracy; (3) allege how the economic impact of that conspiracy is to restrain trade in the market in question; and (4) show a conspiracy or reciprocal relationship between two or more entities." ( Newsday, Inc. v. Fantastic Mind, Inc., 237 AD2d 497 see also, Yankees Entertainment Sports Network, LLC, 224 FSupp2d 657, 678 [S.D.NY 2002]; Watts v. Clark Associates Funeral Home, Inc., 234 AD2d 538; Great Atlantic Pacific Tea Co. v. Town of East Hampton, 997 F Supp 340, 352 [E.D.NY 1998] see generally, Anheuser-Busch, Inc. v. Abrams, 71 NY2d 327, 335; State v. Mobil Oil Corp., 38 NY2d 460, 463).
Here, the plaintiff's opposing submissions establish, at best, a purported negative impact and/or injury affecting only the plaintiff, i.e., the claim that the certain tire was not available to the plaintiff ( Balaklaw v. Lovell, 14 F3d 793, 800 [2nd Cir. 1994] see, Winstar Communications, LLC v. Equity Office Properties, Inc., ___ F3d ___ [ 2006 WL 558541 [2nd Cir. 2006] see also, Watts v. Clark Associates Funeral Home, Inc., supra; Constant v. Hallmark Cards, Inc., 172 AD2d 641, 642; Primo Const., Inc. v. Swig Weiler Arnow Management Co., Inc., 160 AD2d 379, 380 see also, Thornton v. American Kennel Club, Inc., 182 AD2d 358, 359). However, "it has long and frequently been observed" that antitrust laws are concerned with acts that harm "competition, not competitors," and that behavior which hurts or even destroys an individual competitor is not illegal under anti-trust laws unless it also adversely affects competition. ( Apex Oil Co. v. DiMauro, supra, at 595 see, Brunswick Corp. v. Pueblo Bowl-O-Mat Inc., 429 US 477, 488; Winstar Communications, LLC v. Equity Office Properties, Inc., supra; Daniel v. American Bd. of Emergency Medicine, 428 F3d 408, 438 [2nd Cir. 2005]; Yankees Entertainment Sports Network, LLC, supra, at 667). None of the materials submitted creates a triable issue of fact relative to the claim that an actionable conspiracy, agreement or combination was hatched to preclude the plaintiff from acquiring the UT 2000 tire.
Accordingly, the first and fourth causes of action asserting claims under the Donnelly Act are dismissed.
The plaintiff's second cause of action sounding in tortious interference with prospective business relations, is also defectively framed since it does not include the requisite allegations that defendants' conduct was motivated solely by malice or intent to inflict injury by "wrongful means" beyond mere self-interest or other economic considerations ( Carvel Corp. v. Noonan, 3 NY3d 182, 189-190; NBT Bancorp v. Fleet/Norstar Fin. Group, 87 NY2d 614, 622-624; Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 NY2d 183, 190-191 see also, Shared Communications Services of ESR, Inc. v. Goldman Sachs Co., 23 AD3d 162; John Hancock Life Ins. Co. v. 42 Delaware Ave. Associates, LLC, 15 AD3d 939).
The Court notes that the plaintiff has not addressed those branches of the defendants' motions which are to dismiss the tortious interference cause of action. Nor is there anything in the plaintiff's opposing submissions which create issues of fact with respect to the foregoing claim.
The plaintiff's fraudulent misrepresentation (third) cause of action, is apparently based on the theory that a price sheet the plaintiff received from Bridgestone which omitted the subject tire model later offered to Hempstead was the functional equivalent of a false statement that the tire was unavailable (Cmplt., ¶¶ 55-62).
"The essential elements of a cause of action for fraud are representation of a material existing fact, falsity, scienter, deception and injury'" ( New York Univ. v. Continental Ins. Co., 87 NY2d 308, 318, quoting from, Channel Master Corp. v. Aluminum Ltd. Sales, 4 NY2d 403, 407 see also, Lama Holding Co. v. Smith Barney, 88 NY2d 413, 421; Jablonski v. Rapalje, 14 AD3d 484).
Contrary to the plaintiff's contentions, the price sheet it received was not, in effect or otherwise, a fraudulent statement but merely a descriptive list which accurately set forth the tire models and sale terms which were being made available to the plaintiff. Reliance on the sheet was justified only to the extent that the products listed therein were the ones which were being offered to the plaintiff pursuant to the terms of the parties' underlying Dealer Agreement. It should be noted that there is nothing in the Dealer Agreement which required Bridgestone to offer a particular tire to any specific dealer.
The Court disagrees, however, that Bridgestone is entitled to counsel fees and costs pursuant to the Dealer Agreement (Agreement, ¶ 11).
While the Dealer Agreement permits a prevailing party to recover "reasonable costs and attorneys' fees . . . [i]n the event of a dispute arising out of or in connection with this Agreement", the Court finds that the instant action primarily derives from allegedly improper conduct unrelated to the specific contractual terms and conditions set forth in the Agreement.
Accordingly, costs and counsel fees are not recoverable under the foregoing provision.
The Court has considered the plaintiff's remaining contentions, including the assertion that further discovery is required ( see, Weintraub v. Levine, 22 AD3d 664; Kragel v. Animal Hosp. of Rockaways, 5 AD3d 635), and concludes that these claims are insufficient to defeat the defendants' motions for summary judgment.
Lastly, upon a review of the record, the Court concludes that the imposition of sanctions pursuant to 22 NYCRR § 130-1.1. is not warranted.
Accordingly, it is,
ORDERED, that the motions by the defendants Bridgestone Firestone North American Tire, LLC and Hempstead Tire Service, Inc. for summary judgment dismissing the complaint are granted, and it is further,
ORDERED, that the defendants' motions are otherwise denied.
The foregoing constitutes the decision and order of the Court.