Reset A A Font size: Print

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

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

Decided: March 21, 2001

PRESENT:  PINE, J.P., HAYES, HURLBUTT, SCUDDER and LAWTON, JJ. Mark Hannabury, for plaintiff-appellant. Valerie L. Barbic, Rochester, for defendant-respondent.

Supreme Court properly denied plaintiff's motion for summary judgment but erred in granting the motion of Stark Ceramics, Inc. (defendant) for summary judgment dismissing the amended complaint against it.   On this record, there is a triable issue of fact whether defendant violated the Donnelly Antitrust Act (General Business Law § 340 et seq.).   In particular, the distribution agreement, a letter from defendant's representative to the distributors, and the deposition testimony of the parties raise issues of fact concerning how and when the distributors could bid on projects outside their territories and whether distributors were intended to bid, if at all, on the State project.   In addition, the specifics of the telephone conversation between representatives from plaintiff and defendant concerning bidding on the State project are in dispute.   We thus modify the order by denying the motion of defendant and reinstating the amended complaint against it.

Order unanimously modified on the law and as modified affirmed without costs.