in all relevant aspects alike." Nicholas v. Tucker, 114 F.3d 17, 20 (2d Cir. 1997). Where the challenged decision, as here, does not burden a fundamental right or draw a distinction based on a suspect classification, the decision will be upheld if rationally related to a legitimate governmental purpose. Id. Plaintiff alleges, in essence, that it stands in the same position as a would-be builder of an industrial building having a floor area in excess of 10,000 square feet, that the industrial user would not be barred from building such a structure, but that plaintiff would be barred, and that there is no rational basis for that difference in treatment. Plaintiff clearly states an equal protection claim.
The same allegations support an equal protection claim under Article I, Section 11 of the New York State Constitution, whose reach is co-extensive with the federal provision. See Brown v. State, 89 N.Y.2d 172, 652 N.Y.S.2d 223, 224 & n.8, 674 N.E.2d 1129 (N.Y. 1996); Under 21 v. City of New York, 65 N.Y.2d 344, 492 N.Y.S.2d 522, 528 n.6, 482 N.E.2d 1 (N.Y. 1985); Dorsey v. Stuyvesant Town Corp., 299 N.Y. 512, 530 n.6, 87 N.E.2d 541 (1949). The state provision similarly provides that social and economic legislation that neither classifies on the basis of a suspect class nor impairs a fundamental right will be upheld if the challenged classification is rationally related to the achievement of a legitimate state purpose. See Trump v. Chu, 65 N.Y.2d 20, 489 N.Y.S.2d 455, 458, 478 N.E.2d 971 (N.Y. 1985); Maresca v. Cuomo, 64 N.Y.2d 242, 485 N.Y.S.2d 724, 727, 475 N.E.2d 95 (N.Y. 1984).
G. Unconstitutional Interference with Interstate Commerce
Plaintiff's seventh claim for relief alleges that the Town enacted the Superstore Law for the unconstitutional purpose of favoring local business and economic interests over out-of-state interests, and has the effect of interfering with interstate commerce because A&P sells goods that originate from outside of New York State.
The Commerce Clause of the Constitution grants Congress the power to regulate commerce among the states and, by judicial expansion, has been found to limit the authority of states to enact laws that interfere with interstate commerce. Sears, Roebuck & Co. v. Brown, 806 F.2d 399, 405 (2d Cir. 1986). A statute that directly regulates or discriminates against interstate commerce or favors intrastate economic interests over out-of-state interests will usually be held invalid per se. Id. Where the regulation regulates evenhandedly and has only an incidental impact on interstate commerce, the test is whether there is a legitimate local interest in the regulation and whether the burden on interstate commerce clearly exceeds the local benefits. Id.
On the facts alleged, plaintiff fails to state a claim under the dormant Commerce Clause because the pleaded facts do not establish a nexus between the challenged regulation and interstate commerce. The Superstore Law may well be intended to favor small retailers over large retailers and, in that sense, be a form of economic protectionism. But that preference does not implicate interstate commerce where both intrastate and out-of-state large retailers are equally affected. Nor does the mere fact that A&P sells goods that originate from outside of New York State, even considered in the light most favorable to plaintiff, suggest that the Superstore Law, even incidentally, burdens interstate commerce. Plaintiff does not allege any fact tending to suggest that the Superstore Law has the effect of favoring New York goods over those from out-of-state. Plaintiff's seventh claim for relief is dismissed with leave to replead.
H. Violation of 42 U.S.C. § 1983
Plaintiff's eighth claim for relief alleges a deprivation of constitutional rights under the United States Constitution so as to state a claim under 42 U.S.C. § 1983. Although the statute is not itself a source of substantive rights, it is well settled that a plaintiff states a claim for relief under § 1983 by alleging that a person acting under color of state law subjected plaintiff to deprivation of a right secured by the Constitution or laws of the United States. See 42 U.S.C. § 1983; City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985) (Brennan, J., concurring); Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). Plaintiff here has properly pleaded the elements for a § 1983 claim by alleging that the defendants, by passing the Superstore Law, deprived it of its Constitutional right to equal protection, the sole federal right surviving the present motion to dismiss.
I. Violation of the "Donnelly Act"
Plaintiff's ninth claim for relief asserts a state law claim under Section 340 of the New York State General Business Law, also known as the Donnelly Act. Plaintiff alleges that the Superstore Law "constitutes an illegal agreement . . . with owners and operators of existing retail stores in the Town whereby competition in the sale of food and other products . . . is or may be restrained in the relevant market," i.e., the Town and its surrounding areas. Comp. P 99.
The Donnelly Act is patterned patterned after the Sherman Anti-Trust Act (15 U.S.C. § 1 et seq.) and is generally construed in light of federal precedent. See Anheuser-Busch, Inc. v. Abrams, 71 N.Y.2d 327, 525 N.Y.S.2d 816, 820, 520 N.E.2d 535 (N.Y. 1988); Creative Trading Co. v. Larkin-Pluznick-Larkin, Inc., 136 A.D.2d 461, 523 N.Y.S.2d 102, 103 (1st Dep't 1988). The Donnelly Act makes illegal and void any contract, arrangement or agreement that restrains competition in any business, or unlawfully interferes with the free exercise of any activity in the conduct of any business. N.Y. Gen. Bus. Law § 340.
A party asserting a violation of the Donnelly Act must 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. Creative Trading Co., 523 N.Y.S.2d at 103 (citing International Television Prods., Ltd. v. Twentieth Century-Fox Television Div., 622 F. Supp. 1532 (S.D.N.Y. 1985)); Newsday, Inc. v. Fantastic Mind, 237 A.D.2d 497, 655 N.Y.S.2d 583, 584 (2d Dep't 1997). Conclusory allegations of conspiracy are legally insufficient to make out a violation of the Donnelly Act. Sands v. Ticketmaster-New York, Inc., (207 A.D.2d 687, 616 N.Y.S.2d 362, 364 (1st Dep't 1994).
In particular, plaintiff must allege facts that name the alleged conspirators. Creative Trading Co. v. Larkin-Pluznick-Larkin, Inc., 148 A.D.2d 352, 539 N.Y.S.2d 1, 3 (1st Dep't 1989) (Sullivan, J., dissenting), rev'd for the reasons stated in Justice Sullivan's dissenting memorandum, 75 N.Y.2d 830, 552 N.Y.S.2d 558, 551 N.E.2d 1236 (N.Y. 1990); see also Tower Air, Inc. v. Federal Express Corp., 956 F. Supp. 270, 282 (E.D.N.Y. 1996) (citing International Television Prods., 622 F. Supp. at 1537); Anand v. Soni, 215 A.D.2d 420, 626 N.Y.S.2d 830, 831 (2d Dep't 1995) (complaint proper where it made specific allegations against named parties). The complaint must further allege facts to support the existence of a conspiracy. Continental Orthopedic Appliances, Inc. v. Health Ins. Plan of Greater New York, 956 F. Supp. 367, 373 (E.D.N.Y. 1997); Creative Trading Co., 539 N.Y.S.2d at 3.
Plaintiff fails to allege facts to support the claim that the Superstore Law was the result of an illegal agreement between the Town and other entities. As a threshold matter, plaintiff fails to identify the alleged co-conspirators except as the "owners and operators of existing retail stores." That is insufficient to establish a conspiracy, even for pleading purposes. More importantly, plaintiff alleges no fact to suggest that the Superstore Law was the product of a conspiracy or reciprocal arrangement, as opposed to a unilateral act by the Town that may have inured to the benefit of existing retailers. Plaintiff's conclusory allegations are insufficient to state a claim. Accordingly, plaintiff's ninth claim is dismissed with leave to replead with the requisite specificity.
For the reasons stated above, defendant's motion is granted to the extent that 1) plaintiff's first and fourth claims are dismissed with prejudice; 2) plaintiff's fifth claim is dismissed with prejudice insofar as it attempts to assert a violation of substantive due process under the United States Constitution, and stricken as duplicative to the extent asserted under the New York Constitution; and 3) plaintiff's seventh and ninth claims are dismissed with leave to replead. The remainder of defendant's motion is denied.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
March 18, 1998