Opinion
May 4, 1976
Order, Supreme Court, New York County, entered December 23, 1975, denying motion of defendant-appellant to dismiss the complaint, unanimously affirmed. Respondent shall recover of appellant $60 costs and disbursements of this appeal. Defendant-appellant has moved against the complaint claiming, to begin with, that New York courts are ousted of jurisdiction of subject matter because the contract sued on was arrived at pursuant to a formula set forth in the disposition of an ancient (March 14, 1950) antitrust suit brought by the United States against plaintiff-respondent in United States District Court; further, that the United States is a necessary party to this action; and, still further, that comity requires that we defer to the Federal courts and not assume jurisdiction. Regardless, this is a simple breach of contract action, set forth in a proper pleading, and cognizable in the Supreme Court of this State. The fact that the contract sued on had its genesis in procedures laid down in the antitrust judgment provides no basis whatever for defendant's contentions. This, in short, is not a Federal case.
Concur — Stevens, P.J., Markewich, Capozzoli and Nunez, JJ.