Schlottman Agency, Inc. v. Aetna Casualty & Surety Co. , 1979 N.Y. App. Div. LEXIS 12672 ( 1979 )

— Order modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Special Term properly dismissed plaintiffs, Schlottman Agency, Inc., first cause of action in its complaint against defendants Aetna Casualty and Surety Company and the Standard Fire Insurance Company. Further, the third cause of action may not be construed to state a cause of action for prima facie tort since no basis exists for plaintiff to allege that defendants’ acts are without excuse or justification legally sufficient to constitute this intentional tort (ATI, Inc. v Ruder & Finn, 42 NY2d 454, 459-461). The second and third causes of action claim that defendants violated section 340 of the General Business Law of New York (the Donnelly Act). Free competition is the public policy protected by section 340 and wrongful interference with it is prohibited (Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621, 625-626). All that need be shown is that the tendency of the alleged arrangement or combination will be or has been to lessen competition within the relevant market (Columbia Gas of N. Y. v New York State Elec. & Gas Corp., 28 NY2d 117, 128; Hsing Chow v Union Cent. Life Ins. Co., 457 F Supp, 1303, 1306-1308; Eagle Spring Water Co. v Webb & Knapp, 236 NYS 2d 266, 276). Upon a motion to dismiss, a complaint is deemed to allege whatever can reasonably be implied from its statements— and not whether the allegations can be established — considering the complaint as a whole (4 Weinstein-Korn-Miller, NY Civ Frac, par 3211.36, p 32-113; Siegel, New York Practice, § 265; Foley v D’Agostino, 21 AD2d 60, 65). "Motions to dismiss should not be granted unless it is very clear that there can be no relief under any of the facts alleged in the pleading for the relief requested or for other relief’ (Richardson v Coy, 28 AD2d 640, mot withdrawn, 21 NY2d 864). We consider the averments contained in plaintiffs second and third causes of action in that light. Although not artfully drawn, these causes of action together assert more than unilateral price discrimination (see State of New York v Mobil Oil Corp., 38 NY2d 460). Liberally interpreted, the complaint alleges an arrangement or combination between the individual defendants and between them and plaintiffs competitors to interfere with the free exercise by plaintiff of its business and that this interference had the effect of eliminating competition. We conclude, therefore, that section 340 of the Donnelly Act has been sufficiently pleaded to withstand a motion to dismiss for failure to state a cause of action. All concur, except Hancock, Jr., J., who dissents and votes to dismiss the complaint in the following memorandum.