Opinion
No. 142.
Argued October 11, 2006.
Decided November 16, 2006.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered November 17, 2005. The Appellate Division order, insofar as appealed from, affirmed so much of an order of the Supreme Court, Albany County (Bernard J. Malone, Jr., J.), as had granted defendant's cross motion to dismiss plaintiff's complaint and dismissed the complaint.
Plaintiff retail wine and liquor store commenced an action alleging that defendant wholesaler unlawfully refused to sell it certain brands of wine and liquor at prices listed in defendant's mandatory filing with the State Liquor Authority.
Northeast Wine Dev., LLC v. Service-Universal Distribs., Inc., 23 AD3d 890, affirmed.
Crane, Parente, Cherubin Murray, Albany ( John T. McManus and Thomas M. Kernan of counsel), for appellant.
Tuczinski, Cavalier, Burstein Collura, EC, Albany ( Andrew W. Gilchrist, Richard L. Burstein and Jennifer M. Boll of counsel), for respondent.
Before: Chief Judge KAYE, and Judges CIPARICK, ROSENBLATT, GRAFFEO, READ, SMITH and PIGOTT.
OPINION OF THE COURT
The order of the Appellate Division insofar as appealed from should be affirmed, with costs.
The Appellate Division correctly concluded that plaintiffs complaint should be dismissed. The first two causes of action, alleging deceptive conduct in violation of General Business Law §§ 349 and 350, are untenable because the acts alleged do not have the requisite impact on consumers.
Under the circumstances of this case, plaintiffs causes of action seeking injunctive relief are now academic. The Attorney General and the State Liquor Authority entered into a consent decree with eight wine and liquor wholesalers, including defendant. In September 2006, Supreme Court issued an order and judgment enjoining defendant from engaging in the precise conduct for which plaintiff seeks injunctive relief. Plaintiffs remaining contentions lack merit.
Order, insofar as appealed from, affirmed, with costs, in a memorandum.