CBS, Inc. v. Fitchelberg ( 1982 )

— Order, Supreme Court, New York County (Stecher, J.), entered on December 31, 1981, which denied the plaintiff-appellant’s motion for summary judgment and granted the defendant’s cross motion staying the instant State action pending the outcome of a Federal action, is unanimously modified, on the law, the facts and in the exercise of discretion, to the extent of vacating the stay, and otherwise affirmed, without costs. The instant action was commenced by the corporate plaintiff (CBS) in January, 1980, based upon a cause of action for goods sold and delivered. More than four months later, and after issue had been joined, the defendant initiated an action in Federal District Court, alleging that CBS, by adopting and attempting to enforce an illegal tie-in arrangement, violated certain provisions of Federal antitrust statutes. The defendant asserts that the Federal action should be litigated prior to the State action on the grounds that judicial economy will be preserved and that the Federal court has both the expertise and exclusive jurisdiction to decide all claims. We disagree, but do not determine that the Federal action is retaliatory, as contended by the plaintiff. We are dealing here with a claim for a breach of contract, and nothing more. In order for a court to determine the outcome of this action, reference must be had to the forum State’s substantive provisions on contract law. These theories are more properly interpreted and applied by the State judiciary, rather than by our brethren in the Federal judiciary. Concur — Murphy, P. J., Ross, Silverman and Fein, JJ.