| N.Y. App. Div. | Jun 5, 1973
Order, Supreme Court, New York County, entered on August 15, 1972, dismissing defendants’ affirmative defenses and counterclaims, unanimously modified, on the law, to the extent of reinstating the first, third, fourth, fifth and sixth counterclaims, and otherwise affirmed, without costs and without disbursements. Unlike the second counterclaim, which was properly dismissed because it seeks affirmative relief under the Federal anti-trust laws, the other pleaded counterclaims allege, inter alla, breach of contract, commingling of funds, conversion and unjust enrichment. All properly seek relief under State law and, since triable issues were raised, should not have been dismissed. Defendants’ failure to comply with the notice provisions of the contract, though precluding them from exercising their contractual remedies because of plaintiff’é alleged defaults, does not bar them from obtaining the relief sought in the reinstated counterclaims. Concur — Nunez, J. P., Murphy, Lane, Steuer and Capozzoli, JJ.