AMSTERDAM TOBACCO CO INC v. HAROLD LEVINSON ASSOCIATES LLC (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for a violation of the Cigarette Marketing Standards Act (Tax Law art 20–A), the plaintiffs appeal from an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated May 14, 2024.  The order denied the plaintiffs’ motion pursuant to CPLR 3211(b) to dismiss the defendant's affirmative defense alleging the good faith “meeting competition” exception.

ORDERED that the order is affirmed, with costs.

The plaintiffs commenced this action alleging that the defendant, Harold Levinson Associates, LLC (hereinafter HLA), a licensed cigarette agent and wholesaler, violated the Cigarette Marketing Standards Act (CMSA) (Tax Law art 20–A) by offering impermissible rebates.  In connection with a prior appeal, this Court reversed an order granting HLA's motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it (see Amsterdam Tobacco Co., Inc. v. Harold Levinson Assoc., LLC, 201 A.D.3d 846, 162 N.Y.S.3d 397).  Thereafter, in answering an amended complaint, HLA interposed affirmative defenses, including that it did not violate the CMSA because it priced its cigarettes in good faith to meet its competitors’ prices (see Tax Law § 486[b][1]).  The plaintiffs moved pursuant to CPLR 3211(b) to dismiss that affirmative defense.  In an order dated May 14, 2024, the Supreme Court denied the motion.  The plaintiffs appeal.

The Supreme Court properly denied the plaintiffs’ motion pursuant to CPLR 3211(b) to dismiss HLA's affirmative defense alleging the good faith “meeting competition” exception to the CMSA. The plaintiffs did not establish that this affirmative defense was without merit as a matter of law (see Tax Law § 486[b][1];  Amsterdam Tobacco Co., Inc. v. Harold Levinson Assoc., LLC, 201 A.D.3d at 847–849, 162 N.Y.S.3d 397;  see generally Muniz v. SPO Rest., LLC, 227 A.D.3d 1002, 212 N.Y.S.3d 163).

MILLER, J.P., FORD, LOVE and MCCORMACK, JJ., concur.