GEORGE MILLER BRICK CO INC v. STARK CERAMICS INC

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Supreme Court, Appellate Division, Fourth Department, New York.

GEORGE C. MILLER BRICK CO., INC., Plaintiff-Appellant-Respondent, v. STARK CERAMICS, INC., Defendant-Respondent-Appellant, et al., Defendant.

Decided: December 31, 2003

PRESENT:  GREEN, J.P., SCUDDER, GORSKI, LAWTON, AND HAYES, JJ. Charles W. Rogers, Rochester (Mark Hannabury, of the Connecticut Bar, Admitted ProHac Vice, of Counsel), for Plaintiff-Appellant-Respondent. Hiscock & Barclay, LLP, Rochester (Thomas B. Cronmiller of Counsel), for Defendant-Respondent-Appellant.

Plaintiff commenced this action against Stark Ceramics, Inc. (defendant) pursuant to the Donnelly Antitrust Act ( [Donnelly Act] General Business Law § 340 et seq.) alleging that it sustained damages as a result of defendant's unlawful restraint of trade.   As relevant on appeal, Supreme Court granted those parts of defendant's motion seeking to bifurcate the trial and to preclude plaintiff from presenting evidence of its termination as a distributor of defendant's products during the liability phase of the trial.   The court denied that part of defendant's motion seeking the denial of plaintiff's request for a jury instruction that the “per se violation” standard applies to the alleged violation of the Donnelly Act, rather than the “rule of reason” standard.

 Plaintiff contends on its appeal that the court erred in precluding it from presenting evidence of its termination during the liability phase of the trial.  “[I]t is axiomatic that a pretrial order which limits the legal theories of liability to be tried will constitute an appealable order * * * [but] an order which merely limits the admissibility of evidence, even when made in advance of trial on motion papers, constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission” (Strait v. Arnot Ogden Med. Ctr., 246 A.D.2d 12, 14, 675 N.Y.S.2d 457 [internal quotation marks omitted];  see Weatherbee Constr. Corp. v. Miele, 270 A.D.2d 182, 183, 705 N.Y.S.2d 222;  cf.  Brown v. State of New York, 250 A.D.2d 314, 320-321, 681 N.Y.S.2d 170).   Here, the court merely limited the admissibility of evidence when it precluded plaintiff from presenting evidence of its termination during the liability phase of the trial and thus that part of the order is not appealable.   We note that plaintiff failed to brief the issue whether the court properly bifurcated the trial and thus has abandoned that issue on appeal (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 609 N.Y.S.2d 745).

 We reject the contention of defendant on its cross appeal that the court erred in determining that the per se standard, rather than the rule of reason standard, applies in this case.   Plaintiff has limited its theory of liability to a violation of the Donnelly Act based on bid rigging and price fixing.   Although courts generally should apply the rule of reason standard in antitrust cases (see Business Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 723, 108 S.Ct. 1515, 99 L.Ed.2d 808, cert. denied 486 U.S. 1005, 108 S.Ct. 1727, 100 L.Ed.2d 192;  People v. Rattenni, 81 N.Y.2d 166, 171-172, 597 N.Y.S.2d 280, 613 N.E.2d 155), the per se standard is properly applied where, as here, price fixing is alleged (see Business Elecs. Corp., 485 U.S. at 723, 735-736, 108 S.Ct. 1515;  Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 761, 104 S.Ct. 1464, 79 L.Ed.2d 775, reh. denied 466 U.S. 994, 104 S.Ct. 2378, 80 L.Ed.2d 850;  Rattenni, 81 N.Y.2d at 171-172, 597 N.Y.S.2d 280, 613 N.E.2d 155).

It is hereby ORDERED that said appeal from that part of the order granting that part of the motion of defendant Stark Ceramics, Inc. seeking to preclude plaintiff from presenting evidence of its termination as a distributor of the products of defendant Stark Ceramics, Inc. during the liability phase of the trial be and the same hereby is unanimously dismissed and the order is affirmed without costs.

MEMORANDUM: