Summary
applying Copperweld to Donnelly Act claims
Summary of this case from Tese-Milner v. Diamond Trading Company, Ltd.Opinion
2001-06829, 2001-08223
Argued February 18, 2003.
July 28, 2003.
In an action, inter alia, to enjoin the defendants from terminating the plaintiff's access to and utilization of their natural gas delivery system on Long Island, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (O'Connell, J.), dated June 18, 2001, which denied its motion for a preliminary injunction and granted the defendants' cross motion to dismiss the complaint, among other things, for failure to state a cause of action, and (2) a judgment of the same court dated July 24, 2001, which, upon the order, dismissed the complaint.
Reisman, Peirez Reisman, LLP, Garden City, N.Y. (E. Christopher Murray of counsel), for appellant.
Cullen and Dykman, LLP, Brooklyn, N.Y. (Cynthia Boyer Okrent of counsel), for respondents.
Before: GLORIA GOLDSTEIN, J.P., THOMAS A. ADAMS, SANDRA L. TOWNES, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501[a][1]).
We agree with the Supreme Court's determination that the "filed tariff" doctrine and the doctrine of primary jurisdiction bar judicial review at this juncture of the plaintiff's claims challenging the defendants' actions under a tariff filed and approved by the Public Service Commission ( see Brownsville Baptist Church v. Consolidated Edison Co. of N.Y., 272 A.D.2d 358, 359; Porr v. NYNEX Corp., 230 A.D.2d 564, 576-577).
Moreover, the Supreme Court correctly concluded that the plaintiff failed to state a cause of action under the Donnelly Act ( see General Business Law § 340). The defendants are a parent corporation and several of its wholly-owned subsidiaries. A parent corporation and its wholly-owned subsidiaries are considered a single entity under antitrust principles and, therefore, cannot engage in anticompetitive acts ( see Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 769-771; Barnem Circular Distrib. v. Distribution Sys. of Am., 281 A.D.2d 576, 577; Matter of Kick v. Regan, 110 A.D.2d 934, 936). Similarly, sister subsidiary corporations which are wholly-owned by the same parent corporation are legally incapable of conspiring with each other ( see Gucci v. Gucci Shops, 651 F. Supp. 194, 196-197; see also Advanced Health Care Servs. v. Radford Community Hosp., 910 F.2d 139, 145; Directory Sales Mgt. Corp. v. Ohio Bell Tel. Co., 833 F.2d 606, 611; Hood v. Tenneco Texas Life Ins. Co., 739 F.2d 1012, 1015; Century Oil Tool v. Production Specialities, 737 F.2d 1316, 1317).
The plaintiff's remaining contentions are without merit.
GOLDSTEIN, J.P., ADAMS, TOWNES and CRANE, JJ., concur.