        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1364
CA 14-00851
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND DEJOSEPH, JJ.


RADON CORPORATION OF AMERICA, INC.,
PLAINTIFF-APPELLANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

NATIONAL RADON SAFETY BOARD,
DEFENDANT-RESPONDENT,
RADON TESTING CORPORATION OF AMERICA, INC.,
DEFENDANT-RESPONDENT-APPELLANT,
NANCY BREDHOFF AND ANDREAS GEORGE,
DEFENDANTS-RESPONDENTS.


SCOLARO, FETTER, GRIZANTI, MCGOUGH & KING, P.C., SYRACUSE (DOUGLAS J.
MAHR OF COUNSEL), FOR PLAINTIFF-APPELLANT-RESPONDENT.

BENJAMIN LAW PC, NEW YORK CITY (AMY J. BENJAMIN OF COUNSEL), FOR
DEFENDANT-RESPONDENT-APPELLANT.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (MICHAEL P. RINGWOOD
OF COUNSEL), FOR DEFENDANT-RESPONDENT NATIONAL RADON SAFETY BOARD.

SUGARMAN LAW FIRM, LLP, SYRACUSE (SAMUEL M. VULCANO OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS NANCY BREDHOFF AND ANDREAS GEORGE.


     Appeal and cross appeal from a judgment of the Supreme Court,
Onondaga County (Deborah H. Karalunas, J.), entered August 7, 2013.
The judgment, inter alia, granted the motions of defendants-
respondents for summary judgment dismissing the amended complaint
against them, granted those parts of the motion of defendant Radon
Testing Corporation of America, Inc. for summary judgment dismissing
the third and fourth causes of action against it, and granted that
part of the motion of plaintiff for summary judgment on its fifth
cause of action, asserted only against defendant Radon Testing
Corporation of America, Inc.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law without costs by denying those parts
of defendants’ motions with respect to the fourth cause of action and
reinstating the amended complaint to that extent and by granting
judgment in favor of plaintiff on the fifth cause of action as
follows:

          It is ADJUDGED and DECLARED that plaintiff did not
     infringe on the trade name of defendant Radon Testing
                                 -2-                           1364
                                                          CA 14-00851

     Corporation of America, Inc.,

and as modified the judgment is affirmed without costs.

     Memorandum: Plaintiff appeals and defendant Radon Testing
Corporation of America, Inc. (RTCA) cross-appeals from a judgment
that, inter alia, granted the motions of defendants-respondents for
summary judgment dismissing the amended complaint against them,
granted those parts of the motion of RTCA for summary judgment
dismissing the third and fourth causes of action against it, and
granted that part of plaintiff’s motion for summary judgment on its
fifth cause of action, asserted only against RTCA.

     Addressing first plaintiff’s appeal, we conclude that Supreme
Court properly granted those parts of the motion of defendant National
Radon Safety Board (NRSB) for summary judgment dismissing the first
and second causes of action. Those causes of action, asserted only
against NRSB, alleged the denial of equal protection and due process,
and NRSB is not a state actor (see Consumers Union of U.S., Inc. v
State of New York, 5 NY3d 327, 347 n 14). The court also properly
granted those parts of defendants’ motions for summary judgment
dismissing the third cause of action against them, because no cause of
action for tortious interference will lie where, as here, a party’s
alleged motive in interfering with business relationships is “normal
economic self-interest” (Carvel Corp. v Noonan, 3 NY3d 182, 190).

     We agree with plaintiff, however, that the court erred in
granting those parts of defendants’ motions for summary judgment
dismissing the fourth cause of action against them, alleging unfair
competition and restraint of trade in violation of General Business
Law § 340 (1) (hereafter, Donnelly Act), and we therefore modify the
judgment accordingly. Nevertheless, we reject plaintiff’s contention
that it should have been awarded summary judgment on the fourth cause
of action, inasmuch as there are triable issues of fact with respect
thereto. “A party asserting a violation of the Donnelly Act is
required to (1) identify the relevant product market; (2) describe the
nature and effects of the purported conspiracy; (3) allege how the
economic impact of that conspiracy is to restrain trade in the market
in question; and (4) show a conspiracy or reciprocal relationship
between two or more entities” (Newsday, Inc. v Fantastic Mind, 237
AD2d 497, 497). The Court of Appeals has recognized, however, “that
neither the Donnelly Act nor the Sherman Act, after which it was
modeled, has been interpreted as prohibiting every agreement that has
the effect of restraining trade, no matter how minimal. Instead, as
construed by State and Federal courts, the antitrust laws prohibit
only ‘unreasonable’ restraints on trade” (Anheuser-Busch, Inc. v
Abrams, 71 NY2d 327, 333). We note with respect to the first factor
that we agree with plaintiff that New York constitutes a relevant
geographic submarket for Continuous Radon Monitor (CRM)-calibration
services (see Brown Shoe Co. v United States, 370 US 294, 336-337;
Continental Guest Servs. Corp. v International Bus Servs., Inc., 92
AD3d 570, 572-573).

     We conclude with respect to the three remaining factors that
                                 -3-                          1364
                                                         CA 14-00851

there are triable issues of fact whether RTCA and NRSB engaged in
concerted action that unreasonably restrained trade in New York’s CRM-
calibration market inasmuch as the individual defendants are employed
in various capacities with RTCA and are also board members of NRSB,
the entity responsible for formally adopting the policy that
effectively prohibited plaintiff from performing CRM-calibration
services in New York (see International Norcent Tech. v Koninklijke
Philips Elecs. N.V., 2007 WL 4976364, *7 n 51 [CD Cal], affd 323 F
Appx 571 [9th Cir]). Similarly, we note that NRSB’s intra-entity
contention is not dispositive because, here, plaintiff alleged a
conspiracy between two distinct entities and there is an issue of fact
whether RTCA is in competition with plaintiff (see American Socy. of
Mech. Engrs., Inc. v Hydrolevel Corp., 456 US 556, 572-574, reh denied
458 US 1116; cf. Sands v Ticketmaster-N.Y., Inc., 207 AD2d 687, 688,
lv denied 85 NY2d 904).

     Contrary to the further contention of the individual defendants,
they are not entitled to summary judgment dismissing the fourth cause
of action against them. “[C]orporate officer[s] can also be held
liable in civil antitrust actions” under the Donnelly Act, and there
are triable issues of fact regarding their participation in the
alleged corporate antitrust violations (State of New York v Feldman,
2003 WL 21576518, *3 [SD NY]).

      Finally, contrary to the contention of RTCA on its cross appeal,
we conclude that the court properly granted that part of plaintiff’s
motion for summary judgment on the fifth cause of action, asserted
only against RTCA, seeking a declaration that plaintiff did not
infringe on RTCA’s trade name. The court erred, however, in failing
to make a declaration, as sought in the fifth cause of action, and we
therefore further modify the judgment accordingly.




Entered:   February 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
