CPLR § 3013 Particularity of statements generally
Victoria T. Enters., Inc. v Charmer Indus., Inc., 2009 NY Slip Op 04820 (App. Div., 4th, 2009)
Plaintiff commenced this action seeking damages allegedly "arising out
of defendants' long-standing deceptive pricing practices, unfair trade
and monopolistic business practices" in the wine and liquor industry.
Plaintiff appeals from an order that, inter alia, granted the motion of
defendants-respondents (defendants) to dismiss the amended complaint
against them. We affirm. Contrary to plaintiff's contention, Supreme
Court properly granted that part of the motion to dismiss the causes of
action based on alleged violations of the Donnelly Act (General
Business Law § 340 et seq.) and the Alcoholic Beverage Control
Law for failure to state a cause of action. The majority of the
allegations in the amended complaint contain no more than a vague and
conclusory repetition of the statutory language without reference to
date, time or place, and thus the allegations are insufficiently
particular to state a cause of action under either of those statutes (see CPLR 3013; see generally Cole v Mandell Food Stores, 93 NY2d 34, 40; New Dimension Solutions, Inc. v Spearhead Sys. Consultants [US], Ltd., 28 AD3d 260; [*2]Fowler v American Lawyer Media, 306 AD2d 113).
The sole allegation in the amended complaint that refers to a
specific defendant and an arguably specific event is that defendant
Service-Universal Distributors, Inc. (Service-Universal) "had a virtual
monopoly on the sale of Absolut[] vodka, the largest volume vodka
import in the United States at the time[, and that Service-Universal]
would often tie in the sale of . . . a less popular brand[] to the sale
of Absolut[], in violation of New York Law." We conclude however, that
plaintiff did not thereby state a cause of action pursuant to the
Donnelly Act. Tying arrangements are prohibited "when the seller has
some special ability-usually called market power-to force a purchaser
to do something that he would not do in a competitive market" (Illinois Tool Works Inc. v Independent Ink, Inc.,
547 US 28, 36 [internal quotation marks omitted]). Thus, although "some
such arrangements are still unlawful, such as those that are the
product of a true monopoly or a marketwide conspiracy . . ., that
conclusion must be supported by proof of power in the relevant market
rather than by a mere presumption thereof" (id. at 42-43).
Allegations that a seller controls a specific brand of a product are
insufficient to establish that the seller has market power (see generally Sheridan v Marathon Petroleum Co. LLC, 530 F3d 590, 595; Re-Alco Indus. v National Ctr. for Health Educ.,
812 F Supp 387, 392), and the amended complaint otherwise fails to
allege that Service-Universal or any defendant had the power to control
the wine and liquor market. Indeed, with respect to the alleged causes
of action for violation of the Donnelly Act, we conclude that the
amended complaint merely alleges, in various forms, that plaintiff's
competitors were offered a better wholesale price than that offered to
plaintiff. Although "plaintiff may have been deprived of certain
[profits] as a result of [defendants'] practice[s], [those] losses are
clearly not tantamount to injury to competition in the market as a
whole and thus do not constitute a cognizable claim under the Donnelly
Act" (Benjamin of Forest Hills Realty, Inc. v Austin Sheppard Realty, Inc., 34 AD3d 91, 97).
We reject the further contention of plaintiff that it has a
private right of action pursuant to the Alcoholic Beverage Control Law
and the regulations adopted pursuant thereto. The statute and
regulations do not expressly provide for a private right of action, and
thus a private right of action is permitted only in the event that it
may fairly be inferred from the legislative history (see Sheehy v Big Flats Community Day,
73 NY2d 629, 633). In determining whether such a right may be fairly
inferred, "the essential factors to be considered are: (1) whether the
plaintiff is one of the class for whose particular benefit the statute
was enacted; (2) whether recognition of a private right of action would
promote the legislative purpose; and (3) whether creation of such a
right would be consistent with the legislative scheme" (id.; see CPC Intl. v McKesson Corp., 70 NY2d 268, 276; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 324-325; Niagara Mohawk Power Corp. v Testone, 272 AD2d 910, 911; see also McLean v City of New York, 12 NY3d 194,
200). Contrary to plaintiff's contention, we conclude that no private
right of action may be inferred from the legislative history of the
Alcoholic Beverage Control Law. "The Legislature enacted the [Alcoholic
Beverage Control] Law to promote temperance in the consumption of
alcoholic beverages and to advance respect for [the] law' " (DJL Rest. Corp. v City of New York, 96 NY2d 91, 96; see
§ 2). "[I]t would be inappropriate for [this Court] to find another
enforcement mechanism beyond the statute's already comprehensive'
scheme . . . [and, c]onsidering that the statute gives no hint of any
private enforcement remedy for money damages, we will not impute one to
the lawmakers" (Mark G. v Sabol, 93 NY2d 710, 720-721).
The bold is mine.
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