In order to state a claim under General Business Law § 340, the Donnelly Act. a plaintiff must "(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 (Benjamin of Forest Hills Realty, Inc. v Austin Sheppard Realty, Inc., 34 A.D.3d 91. 94, 823 N.Y.S.2d 79 [2d Dept 2006], citing Altman v Bayer Corp.. 125 F.Supp.2d 666 [SDNY 2000]; Great Atl. & Pac. Tea Co, Inc. v Town of Easthampton, 997 F.Supp. 340 [EDNY 1998]; Newsday, Inc. v Fantastic Mind, 237 A.D.2d 497, 655 N.Y.S.2d 583 [2d Dept 1997]; Bello v Cablevision Sys. Corp., 185 A.D.2d 262, 587 N.Y.S.2d 1 [2d Dept 1992]; Creative Trading Co. v Larkin-Pluznick-Larkin, Inc., 136 A.D.2d 461, 552 N.Y.S.2d 558 [1988]). Plaintiffs complaint fails sufficiently to state a claim under the Donnelly Act.
"Tortious interference with business relations' applies to those situations where the third party would have entered into or extended a contractual relationship with the plaintiff but for the intentional and wrongful acts of the defendant." ( Newsday, Inc. v Fantastic Mind, Inc., 237 AD2d 497 [2d Dept 1997]; see also M.J. K. Co. v Matthew Bender Co., 220 AD2d 488, 490 [2d Dept 1995]; WFB Telecom. v NYNEX Corp., 188 AD2d 257 [1st Dept 1992]). "In such an action [t]he motive for the interference must be solely malicious, and the plaintiff has the burden of proving this fact."
And, as the very case cited by Crowdnetic on this point states, "'[t]ortious interference with business relations' applies to those situations where the third party would have entered into or extended a contractual relationship with the plaintiff but for the intentional and wrongful acts of the defendant.'" Icahn v. Lions Gate Entm't Corp., 31 Misc. 3d 1205(A), 929 N.Y.S.2d 200 (Sup. Ct. 2011) (quoting Newsday, Inc. vFantastic Mind, Inc., 237 A.D.2d 497 (2d Dep't 1997) (emphasis added)). Though Crowdnetic argues otherwise, the SACC is replete with allegations of a longstanding business relation between Albright and LendIt, which plausibly could have extended but for Crowdnetic's interference. (E.g., SACC ¶¶ 11, 13, 14). Crowdnetic's motion to dismiss this claim is therefore denied.
To assert a claim under the Donnelly Act, a plaintiff must: (1) identify the relevant market; (2) describe the nature and effects of the purported conspiracy; (3) describe how the economic impact of the conspiracy restrains trade in the market in question; and (4) identify a conspiracy or reciprocal relationship between two or more parties. Creative Trading Co., Inc. v. Larkin-Pluznick-Larkin, Inc., 136 A.D.2d 461, 462, 523 N.Y.S.2d 102, 103 (1st Dept. 1988). See also Newsday, Inc. v. Fantastic Mind, Inc., 237 A.D.2d 497, 497, 655 N.Y.S.2d 583, 584 (2d Dep't 1997); Shepard Indus., Inc. v. 135 East 57th St. LLC, 1999 WL 728641, at *3 (S.D.N.Y. 1999). Dismissals at the pleading stage of an antitrust claim prior to giving the plaintiff ample opportunity for discovery should be granted very sparingly.
A party asserting a violation of the Donnelly Act must 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. Creative Trading Co., 523 N.Y.S.2d at 103 (citing International Television Productions, Ltd. v. Twentieth Century-Fox Television Div., 622 F.Supp. 1532 (S.D.N.Y.1985)); Newsday, Inc. v. Fantastic Mind, 237 A.D.2d 497, 655 N.Y.S.2d 583, 584 (2d Dep't 1997). Conclusory allegations of conspiracy are legally insufficient to make out a violation of the Donnelly Act.
A party claiming a violation of the Donnelly Act based upon such an arrangement or conspiracy, must establish "both concerted action by two or more entities and a consequent restraint of trade within an identified relevant product market" (Global Reins. Corp.–U.S. Branch v. Equitas Ltd., 18 N.Y.3d 722, 731, 946 N.Y.S.2d 71, 969 N.E.2d 187 ). In order to establish such a claim under the Donnelly Act, a plaintiff must demonstrate a conspiracy or a reciprocal arrangement between two or more legal or economic entities, identify the relevant market affected, and show that the economic impact of the alleged conspiracy or arrangement restrains trade in the market (see Shaw v. Club Mgrs. Assn. of Am., Inc., 84 A.D.3d 928, 929, 923 N.Y.S.2d 127 ; Capitaland United Soccer Club v. Capital Dist. Sports & Entertainment, 238 A.D.2d 777, 779, 656 N.Y.S.2d 465 ; Newsday, Inc. v. Fantastic Mind, 237 A.D.2d 497, 655 N.Y.S.2d 583 ; see also Altman v. Bayer Corp., 125 F.Supp.2d 666, 668 [S.D.N.Y.] ; Great Atlantic & Pacific Tea Co., Inc. v. Town of East Hampton, 997 F.Supp. 340 [E.D.N.Y.] ).
Nevertheless, we reject plaintiff's contention that it should have been awarded summary judgment on the fourth cause of action, inasmuch as there are triable issues of fact with respect thereto. “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, 237 A.D.2d 497, 497, 655 N.Y.S.2d 583 ). The Court of Appeals has recognized, however, “that neither the Donnelly Act nor the Sherman Act, after which it was modeled, has been interpreted as prohibiting every agreement that has the effect of restraining trade, no matter how minimal.
Nevertheless, we reject plaintiff's contention that it should have been awarded summary judgment on the fourth cause of action, inasmuch as there are triable issues of fact with respect thereto. "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, 237 AD2d 497, 497). The Court of Appeals has recognized, however, "that neither the Donnelly Act nor the Sherman Act, after which it was modeled, has been interpreted as prohibiting every agreement that has the effect of restraining trade, no matter how minimal.
"[T]o sufficiently state a violation of General Business Law § 340, a party must allege a conspiracy or a reciprocal relationship between two or more legal or economic entities, identify the relevant market affected, describe the nature and effect of the alleged conspiracy and the manner in which the economic impact of that conspiracy restrains trade in the market" ( Capitaland United Soccer Club v Capital Dist. Sports Entertainment, 238 AD2d 777, 779; see Neri's Land Improvement, LLC v J.J. Cassone Bakery, Inc., 65 AD3d 1312, 1315; Benjamin of Forest Hills Realty, Inc. v Austin Sheppard Realty, Inc., 34 AD3d 91, 94; Watts v Clark Assoc. Funeral Home, 234 AD2d 538). Here, the complaint fails to allege the nature and effect of the claimed conspiracy and the manner in which the economic impact of that conspiracy restrains trade in the market ( see Benjamin of Forest Hills Realty, Inc. v Austin Sheppard Realty, Inc., 34 AD3d at 97; Newsday, Inc. v Fantastic Mind, 237 AD2d 497; Watts v Clark Assoc. Funeral Home, 234 AD2d 538; Constant v Hallmark Cards, 172 AD2d 641, 642; cf. Anand v Soni, 215 AD2d 420). The Supreme Court also properly dismissed so much of the second cause of action as alleged a violation of General Business Law § 349, since the complaint did not allege an act or practice that was "consumer oriented" ( Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330, 344 [internal quotations omitted]; see Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 24-25; see also Maple House, Inc. vAlfred F. Cypes Co., Inc., 80 AD3d 672, 673).
The Supreme Court also properly granted that branch of Mecox's motion which was to dismiss the fourth cause of action alleging tortious interference with a commercial relationship. The plaintiff failed to allege that Mecox used wrongful means beyond persuasion alone to interfere with the plaintiffs relationship with Oly, or that Mecox's motive was solely to harm the plaintiff as opposed to advancing its own economic interests ( see Carvel Corp. v Noonan, 3 NY3d 182; Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183, 191; Pink v Half Moon Coop. Apts., S., Inc., 68 AD3d 739, 741; Newsday, Inc. v Fantastic Mind, 237 AD2d 497; Home Town Muffler v Cole Muffler, 202 AD2d 764). The plaintiffs remaining contention is without merit.