Milwaukee Electric Tool Corp. v. McGrath & Durk, Inc.

133 A.D.2d 535, 519 N.Y.S.2d 905, 1987 N.Y. App. Div. LEXIS 50022

Opinion

— Order unanimously reversed on the law with costs, and plaintiff’s motion granted. Memorandum: Plaintiff commenced an action to recover the purchase price of merchandise sold and delivered to defendant. Defendant admitted that it ordered the merchandise but asserted by way of defense and counterclaim that plaintiff had discriminated against it in violation of the Robinson-Patman Act by selling to other distributors at a lower price.

Special Term erred in denying plaintiff’s motion to strike defendant’s affirmative defenses and to dismiss the counterclaim. The Federal courts have exclusive jurisdiction over such claims (Bruce’s Juices v American Can Co., 330 US 743). The court also erred in denying plaintiff’s motion for summary judgment since defendant failed to dispute the factual allegations of the verified complaint (see, CPLR 3016 [f]; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3016:9, at 76). (Appeal from order of Supreme Court, Niagara County, Cook, J. — summary judgment.) Present — Callahan, J. P., Denman, Green, Pine and Davis, JJ.