TDK Electronics Corp. v. M & A Enterprises , 172 A.D.2d 603 ( 1991 )

In an action, inter alia, to recover payment for goods sold and delivered, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Goldstein, J.), dated November 1, 1989, as denied that branch of its motion which was to dismiss the second affirmative defense and counterclaim.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion which was to dismiss the second affirmative defense and counterclaim is granted.

In this action, the plaintiff is attempting to collect payment for blank video and audio tapes sold to the defendants. The defendants have asserted, by way of affirmative defense and counterclaim, that the plaintiff discriminated against them in violation of the Federal and State antitrust laws by selling the same goods to other distributors at a lower price.

The Supreme Court erred in refusing to dismiss this defense and counterclaim. An alleged violation of the antitrust laws is not a defense to an action to recover payment for goods sold and delivered or services rendered (see, Bruce’s Juices v American Can Co., 330 US 743; Columbia Broadcasting Sys. v Roskin Distribs., 31 AD2d 22, affd 28 NY2d 559). Additionally, we find that the allegations of price discrimination in this case do not state a cause of action under State antitrust laws (see, Milwaukee Elec. Tool Corp. v McGrath & Durk, 133 AD2d 535, 536; Creative Trading Co. v Larkin-Pluznick-Larkin, Inc., 75 NY2d 830; State of New York v Mobil Oil Corp., 38 NY2d 460). Lawrence, J. P., Fiber, Balletta and Ritter, JJ., concur.