LoPRESTI v. MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY (2006)

In an action to recover damages, inter alia, for violation of General Business Law § 340, the plaintiff appeals from an order of the Supreme Court, Kings County (Demarest, J.), dated October 19, 2004, which granted the respective motions of all defendants, except New York-Presbyterian Healthcare System, Inc., inter alia, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

The Supreme Court properly granted the respondents' respective motions, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them.   Accepting the facts as alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference (see Leon v. Martinez, 84 N.Y.2d 83, 614 N.Y.S.2d 972, 638 N.E.2d 511), the complaint fails to state a cause of action.   The plaintiff's allegations regarding the respondents' conduct were impermissibly vague and conclusory (see Hart v. Scott, 8 A.D.3d 532, 778 N.Y.S.2d 718;  Stoianoff v. Gahona, 248 A.D.2d 525, 670 N.Y.S.2d 204, cert. denied 525 U.S. 953, 119 S.Ct. 384, 142 L.Ed.2d 317).

 The plaintiff's cause of action alleging a violation of General Business Law § 340, commonly known as the Donnelly Act, was properly dismissed insofar as asserted against the respondents because the complaint contained only vague, conclusory allegations insufficient to adequately plead a conspiracy or reciprocal relationship between two or more entities (see Creative Trading Co. v. Larkin-Pluznick-Larkin, 75 N.Y.2d 830, 552 N.Y.S.2d 558, 551 N.E.2d 1236;  State of New York v. Mobil Oil Corp., 38 N.Y.2d 460, 381 N.Y.S.2d 426, 344 N.E.2d 357;  Heart Disease Research Foundation v. General Motors Corp., 463 F.2d 98).   Moreover, the complaint failed to identify a relevant market, or an injury to competition cognizable under the statute (see Hampton Navigation v. Pinpoint Sys. Intl., 245 A.D.2d 485, 666 N.Y.S.2d 705;  Shepard Indus. v. 135 East 57th Street, LLC, 1999 WL 728641, 1999 U.S. Dist. LEXIS 14431 [S.D.N.Y. Sept. 17, 1999];  International Tel. Productions. Ltd. v. Twentieth Century-Fox Tel., 622 F.Supp. 1532;  cf. Eagle Spring Water Co. v. Webb & Knapp, 236 N.Y.S.2d 266).

 The plaintiff's cause of action alleging a violation of Insurance Law § 2123 and related regulations was properly dismissed insofar as asserted against the respondents because the complaint failed to identify any alleged misstatements with the required particularity (see CPLR 3016[b];  Precision Concepts v. Bonsanti, 172 A.D.2d 737, 569 N.Y.S.2d 124), or to adequately allege that his commissions were lost “as a result of” any such misstatements or other violation of the Insurance Law (Insurance Law § 2123 [d] ).

 The plaintiff's third and fourth causes of action to recover damages for tortious interference with contract and tortious interference with prospective contractual relations and/or economic advantage, were also properly dismissed insofar as asserted against the respondents.   The plaintiff was not a party to, nor a third-party beneficiary of, the contracts with which the respondents allegedly interfered (see McGuire v. Sterling Doubleday Enters., L.P., 19 A.D.3d 660, 799 N.Y.S.2d 65;  Richbell Info. Servs. v. Jupiter Partners, 309 A.D.2d 288, 765 N.Y.S.2d 575).   Moreover, the agreements were terminable at will (see Guard-Life Corp. v. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 191-192, 428 N.Y.S.2d 628, 406 N.E.2d 445;  American Preferred Prescription v. Health Mgt., 252 A.D.2d 414, 678 N.Y.S.2d 1), and the allegation that the respondents' actions were wrongful or unlawful were conclusory and without support (see NBT Bancorp v. Fleet/Norstar Fin. Group, 87 N.Y.2d 614, 621, 641 N.Y.S.2d 581, 664 N.E.2d 492;  Primo Constr. v. Swig Weiler & Arnow Mgt. Co., 160 A.D.2d 379, 553 N.Y.S.2d 425).

 Finally, the plaintiff's cause of action alleging unfair competition was properly dismissed insofar as asserted against the respondents because the complaint failed to allege the bad faith misappropriation of a commercial advantage which belonged exclusively to him (see Beverage Mktg. USA v. South Beach Beverage Co., 20 A.D.3d 439, 799 N.Y.S.2d 242;  see also Allied Maintenance Corp. v. Allied Mechanical Trades, 42 N.Y.2d 538, 399 N.Y.S.2d 628, 369 N.E.2d 1162;  Eagle Comtronics v. Pico Prods., 256 A.D.2d 1202, 682 N.Y.S.2d 505).