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State of New York 

Court of Appeals 

MEMORANDUM 

This memorandum is uncorrected and subject to 

revision before publication in the New York Reports.

No. 27 

Taxi Tours Inc., 

 Plaintiff, 

 v. 

Go New York Tours, Inc., 

 Appellant. 

---------------------------- 

Go New York Tours, Inc., 

 Appellant, 

 v. 

Big Bus Tours Limited, et al., 

 Respondents. 

Maurice N. Ross, for appellant. 

Kenneth M. Edelson, for respondents Gray Line New York Tours, Inc. et al. 

MEMORANDUM: 

The Appellate Division order, insofar as appealed from, should be reversed, with 

costs, and motion by Gray Line New York Tours, Inc., Twin America, LLC and 

Sightseeing Pass LLC to dismiss as against them the first and second counterclaims denied. 
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In the underlying action against Go New York related to its tour bus business, Go 

New York answered and counterclaimed that respondents, Gray Line New York Tours, 

Inc., Twin America, LLC and Sightseeing Pass LLC—collectively referred to by Go New 

York as “Gray Line” because these entities allegedly acted in concert and fall within 

common ownership and control—engaged, amongst other things, in anticompetitive 

behavior that violated the Donnelly Act (see General Business Law § 340 et seq.) and 

constituted tortious interference with prospective business relations. As relevant here, 

Supreme Court granted respondents’ motion to dismiss these counterclaims as against 

them. The Appellate Division affirmed on the ground that Go New York failed to allege 

sufficient facts in support of its Donnelly Act claim and the “wrongful means” underlying 

its tortious interference counterclaim was nothing more than the insufficient allegations of 

a Donnelly Act violation (210 AD3d 451 [1st Dept 2022]). We conclude that these 

counterclaims are adequately pleaded. 

On a motion to dismiss for failure to state a claim under CPLR 3211 (a) (7), the 

Court affords the pleading “a liberal construction” and must “accept the facts as alleged [ ] 

as true, accord [the nonmoving party] the benefit of every possible favorable inference, and 

determine only whether the facts as alleged fit within any cognizable legal theory” (Leon 

v Martinez, 84 NY2d 83, 87-88 [1994]); see also 34-06 73, LLC v Seneca Ins. Co., 39 

NY3d 44, 51 [2022]). Thus, “[w]hether [the nonmoving party] can ultimately establish its 

allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v 

Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see also Sassi v Mobile Life Support Servs., 

Inc., 37 NY3d 236, 239 [2021]). 
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The Donnelly Act prohibits “[e]very contract, agreement, arrangement or 

combination” through which “a monopoly . . . is or may be established or maintained,” 

whereby “competition or the free exercise of any activity in the conduct of business . . . is 

or may be restrained,” or whereby trade or business is or may be restrained “[f]or the 

purpose of establishing or maintaining any such monopoly or unlawfully interfering with 

the free exercise of any activity in the conduct of any business, trade or commerce” 

(General Business Law § 340 [1]). As with a claim brought “under its essentially similar 

federal progenitor, section 1 of the Sherman Act (15 USC § 1 et seq),” a claim brought 

under the Donnelly Act, at a minimum, “must allege both concerted action by two or more 

entities and a consequent restraint of trade within an identified relevant product market” 

(Global Reins. Corp.-U.S. Branch v Equitas Ltd., 18 NY3d 722, 731 [2012]). The Court 

has recognized that “the sweep of Donnelly may be broader than that of Sherman” insofar 

as the Donnelly Act proscribes “arrangements” in addition to contracts, combinations, and 

conspiracies (State v Mobil Oil Corp., 38 NY2d 460, 464 [1976]). Nonetheless, the term 

“arrangement” does not embrace any practice and has “a connotation similar to that of the 

other terms,” thus requiring “a reciprocal relationship of commitment between two or more 

legal or economic entities similar to but not embraced within the more exacting terms, 

‘contract’, ‘combination’ or ‘conspiracy’ ” (id.). 

Go New York alleges that the Gray Line respondents conspired with other 

counterclaim defendants (which Go New York refers to as “Big Bus/Leisure Pass”), to 

leverage their market share to “shut out” Go New York from the “hop-on, hop-off 

sightseeing tour bus market.” According to the facts asserted—which we must accept as 
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true on this motion—representatives from various New York City attractions refused to do 

business with Go New York after Gray Line and Big Bus/Leisure Pass impugned Go New 

York’s reputation and threatened to end their business with those attractions if they did 

business with Go New York. Go New York also alleged that, although certain attractions 

referenced exclusive relationships with either Gray Line or Big Bus/Leisure Pass as a basis 

not to partner with Go New York, the attractions in fact partnered with both. Thus, it can 

be inferred that the claimed exclusive relationships were a pretext to cover for 

anticompetitive efforts to exclude Go New York. Although sparse, these factual assertions 

and all the possible inferences to be drawn therefrom are sufficient to allege concerted 

action between two or more entities and support a cognizable Donnelly Act counterclaim 

under our liberal notice pleading standards (see Anheuser-Busch, Inc. v Abrams, 71 

NY2d 327, 333-335 [1988]; Mobil Oil Corp., 38 NY2d at 464; Leon, 84 NY2d at 87-88). 

Order insofar as appealed from reversed, with costs, and motion by Gray Line New York 

Tours, Inc., Twin America, LLC and Sightseeing Pass LLC to dismiss as against them the 

first and second counterclaims denied, in a memorandum. Chief Judge Wilson and Judges 

Rivera, Garcia, Singas, Cannataro, Troutman and Halligan concur. 

Decided March 14, 2024