The opinion of the court was delivered by: PLATT
PLATT, D.J. [In full text except for omissions as indicated by asterisks]: This is a motion by the defendants in the second of the above-captioned actions, Motorola Inc. (Motorola) and Motorola Communications & Electronics, Inc. (MCEI), to dismiss three counts of the four count complaint, and by defendant Associates Capital Services Corp. (Associates) to dismiss all four counts of the complaint on a variety of grounds.
Despite the seemingly multifaceted nature of this case, both of the complaints in these consolidated actions arise essentially from a relatively simple set of facts. Fairway Private Cars, Inc. (Fairway), the defendant in the first action and plaintiff in the second action, entered into a conditional sales contract with MCEI and Motorola in June, 1979 for the purchase of two-way mobile radios and related equipment. In June, 1980 a lease for additional equipment was signed by the same parties. Both the contract and the lease were subsequently assigned to Associates in December, 1979 and September, 1980, respectively.
In August, 1981, Fairway failed to make payments allegedly due under the terms of the contracts to Associates. Associates accelerated the balance due under both contracts and sought $259,947.20 from Fairway.
During the time that Fairway had possession of the radios and equipment, it had complained to Motorla and MCEI of defects which said defendants had unsuccessfully tried to correct. At some unspecified time, Fairway complaining of breach of warranties offered to return the merchandise and sought repayment of the $96,371.90 it had previously paid to the defendants.
Associates brought its action for breach of contract on December 8, 1981. On December 11, 1981, Fairway brought its action against Motorola, MCEI and Associates alleging in count 1, breach of warranty; in count 2, use of deceptive acts and practices in violation of section 349 of the New York General Business Law; in count 3, restraint of Fairway's right to freely engage in business in violation of the New York State antitrust law, section 340 of the New York General Business Law (Donnelly Act); and in count 4, breach of the duty of fair dealing and good faith.
By order of this Court dated March 16, 1982, the two actions were consolidated.
Associates, Motorola and MCEI now move, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the deceptive trade practice and Donnelly Act counts of the complaint for failure to state claims upon which relief can be granted. Associates makes the same motion solely on its own behalf as to the bad faith dealing count. Motorola and MCEI also move to dismiss the bad faith dealing count on the basis of Fairway's alleged failure to provide a short, plain statement pursuant to Rule 8(a) of the Federal Rules of Civil Procedure. Finally, Associates seeks a dismissal of the breach of warranty count, and argues that Fairway be required to reassert this claim in its answer to Associates' action for breach of contract against Fairway as an offset only.
Fairway's complaint alleges that the defendants conspired in violation of New York State's antitrust law, the Donnelly Act,
restrain and inhibit plaintiff from purchasing suitable radio equipment and financing for same from their sources and to coerce and compel plaintiff to continue to do business with defendants and to continue to make payments to defendant Associates even though said defendants knew or had reeason to know that the [radio] system acquired by plaintiff was inoperable, and, despite repeated efforts by defendant MCEI, would not be made operable or suitable for plaintiff's purposes.
Fairway sets forth four specific acts committed by the defendants in furtherance of their alleged conspiracy:
1. MCEI and Motorola stated that they would not further service or repair the inoperable radio system until Fairway paid to ...