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TIP TOP FARMS v. DAIRYLEA

114 A.D.2d 12 (1985)

Tip Top Farms, Inc., Appellant-Respondent, v. Dairylea Cooperative, Inc., Respondent-Appellant. (Action No. 1.) Park Lane Dairies, Inc., et al., Appellants-Respondents, v. Dairylea Cooperative, Inc., Respondent-Appellant. (Action No. 2.) Jerome Dairy Co., Inc., Appellant-Respondent, v. Dairylea Cooperative, Inc., Respondent-Appellant. (Action No. 3.)

Appellate Division of the Supreme Court of the State of New York, Second Department.

December 30, 1985

Attorney(s) appearing for the Case

Marcus & Katz (Lawrence K. Katz of counsel), for Tip Top Farms, Inc. and another, appellants-respondents.

Field, Lomenzo & Turret, P. C. (David A. Field and Burt Kesselman of counsel), for Park Lane Dairies, Inc. and another, appellants-respondents.

Bond, Schoeneck & King (John M. Freyer, Ronald C. Berger and Janet H. Bliss of counsel), for Dairylea Cooperative, Inc., respondent-appellant.

BRACKEN and EIBER, JJ., concur with RUBIN, J.; LAZER, J. P., concurs in part and dissents in part, and votes to modify the orders appealed from, by denying those branches of defendant's motions which sought summary judgment dismissing so much of the complaint in action No. 1 as demands a share of proceeds received by defendant in settlement of an antitrust suit, and summary judgment dismissing the complaints in actions Nos. 2 and 3 in their entirety, with an opinion.

RUBIN, J.

The common issue for appellate review in these three appeals is whether Federal antitrust policies bar indirect purchasers from obtaining, in an action to recover damages for a breach of contract or for money had and received, so much of a direct purchaser's recovery fund in a Federal antitrust action as represents illegal overcharges that had been passed on to the indirect purchasers pursuant to cost...

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