Sperry v. Crompton Corp.

In a purported class action to recover damages, inter alia, for antitrust violations and unjust enrichment, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Parga, J.), dated November 20, 2003, as granted the motion of the defendants Crompton Corporation, Uniroyal Chemical Company, Inc., Uniroyal Chemical Company Limited, Flexsys NY Flexsys America, LR Bayer Corporation, and Rhein Chemie Corporation pursuant to CPLR 3211 (a) (7) to dismiss the antitrust and unjust enrichment claims.

Ordered that the order is affirmed insofar as appealed from, with costs.

In this action on behalf of a putative class of members who purchased automobile tires in New York, the plaintiff seeks to recover damages against producers of rubber processing chemicals for conspiring to artificially fix, raise, stabilize, and maintain the price of rubber processing chemicals, thereby causing the plaintiff and others similarly situated to pay inflated prices for tires processed with the defendants’ chemicals.

The Supreme Court properly dismissed the plaintiffs General Business Law § 340 (the Donnelly Act) class action claim as barred by CPLR 901 (b) (see Paltre v General Motors Corp., 26 AD3d 481 [2006] [decided herewith]).

The Supreme Court likewise properly dismissed the plaintiffs claim to recover damages for unjust enrichment. Because the plaintiff was not in privity with the defendants, the plaintiff cannot maintain an action against them to recover damages for unjust enrichment (see Outrigger Constr. Co. v Bank Leumi Trust Co. of N.Y., 240 AD2d 382, 384 [1997]; Kagan v K-Tel Entertainment, 172 AD2d 375, 376 [1991]; Sybelle Carpet & Linoleum of Southampton v East End Collaborative, 167 AD2d 535, 536-537 [1990]; Kapral's Tire Serv. v Aztek Tread Corp., 124 AD2d 1011, 1013 [1986]). We decline to follow the decision of the Appellate Division, First Department, in Cox v Microsoft Corp. (8 AD3d 39, 40 [2004]), which dispenses with the requirement of privity for a claim sounding in unjust enrichment. Crane, J.P., Santucci, Mastro and Dillon, JJ., concur.