State v. Middletown Beef Co.

84 A.D.2d 834

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1981
• Status: Published

Opinion

In an action, inter alia, to enjoin defendants from engaging in false and deceptive business practices, defendants appeal from so much of an order of the Supreme Court, Orange County (O’Gorman, J.), dated September 18, 1980, as granted plaintiff partial summary judgment. Order affirmed insofar as appealed from, without costs or disbursements. The affidavit of the Assistant Attorney-General in support of the motion pursuant to CPLR 3212 for summary judgment, was founded upon documentary evidence and was therefore sufficient as a matter of law. (Cf. Comptroller of State of N. Y. v Gards Realty Corp., 68 AD2d 186, 188-189; Getlan v Hofstra Univ., 41 AD2d 830, 831, app dsmd 33 NY2d 646.) The record reveals that the facts concerning the value of the products advertised, bulk meats, were deceptively concealed. (Cf. People v Federated Radio Corp., 244 NY 33, 40.) The papers submitted in opposition to the motion did not establish a question of fact concerning the capacity of the advertisements in issue to deceive the public at large. (See People v Volkswagen of Amer., 47 AD2d 868; Montgomery Ward & Co. v Federal Trade Comm., 379 F2d 666, 670.) Nor have defendants refuted consumer complaints that they did not receive the quantity of beef purchased. Accordingly, Special Term was correct in granting partial summary judgment and holding that defendants violated sections 349, 350 and 350-a of the General Business Law. (Cf. Matter of State of New York v Colorado State Christian Coll. of Church of Inner Power, 76 Misc 2d 50, 54.) Margett, J. P., O’Connor, Weinstein and Bracken, JJ., concur.