Omark Indus., Inc. v. Lubanko Tool Co., 266 F.2d 540 (2d Cir. 1959). · Go Syfert
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Omark Indus., Inc. v. Lubanko Tool Co., 266 F.2d 540 (2d Cir. 1959). Cases Citing This Book View Copy Cite
25 citation events (2 in the last 25 years) across 10 distinct courts.
Strongest positive: Trigo Hnos., Inc. v. Premium Wholesale Groceries, Inc. (nysd, 1976-10-14)
Treatment trajectory · 1959 → 2026 · click a year to view as-of
1959 1992 2026
Top citers, strongest first. 9 distinct citers. How cited ↗
discussed Cited as authority (rule) Trigo Hnos., Inc. v. Premium Wholesale Groceries, Inc.
S.D.N.Y. · 1976 · confidence medium
Thus, in Omark Industries, Inc. v. Lubanko Tool Co., Inc., 266 F.2d 540, 541 (2d,Cir. 1959), the Second Circuit held that granting of summary judgment was proper where “plaintiff relies on the purchase orders and invoices to establish its claim, and defendant does not plead any affirmative defense based on those documents.” In Metro Corrugated Containers v. Owens-Illinois Glass Co., 185 F.Supp. 359, 361 (E.D.N.Y.1960), the court observed that “there is no denial of the receipt of the goods and the obligation to pay ” (emphasis added).
discussed Cited "see" Greenblatt v. Prescription Plan Services Corp. (2×) also: Cited "see, e.g."
S.D.N.Y. · 1992 · signal: see · confidence high
Under Rule 56 of the Federal Rules of Civil Procedure, where a counterclaim presents an independent, unliquidated claim and presents no issue of fact as to the plaintiff’s claim, “the entry of summary judgment on plaintiff’s claim is not only proper but is required.” Allis-Chalmers Corp. v. Philadelphia Electric Co., 64 F.R.D. 135, 140 (E.D.Pa.1974) (citation omitted), appeal dismissed, remanded, 521 F.2d 360 (3d Cir. 1975) (“In times of tight money ... the ingenuity of debtors in devising reasons for not paying liquidated indebtedness is limited only by the willingness of the courts…
cited Cited "see" Ben & Jerry's Homemade, Inc. v. FBJ Distribution, Inc.
D. Vt. · 1992 · signal: see · confidence high
See Omark Industries, Inc. v. Lubanko Tool Co., 266 F.2d 540, 541 (2d Cir.1959); Electro-Catheter Corp. v. Surgical Specialties Instrument Co., 587 F.Supp. 1446, 1456-57 (D.N.J.1984).
cited Cited "see" Chemetron Corp. v. Cervantes
D.P.R. · 1981 · signal: see · confidence high
See Omark Industries, Inc. v. Lubanko Tool Co., 266 F.2d 540 (2 Cir., 1959); Electroglas, Inc., v. Dynatex Corp., 473 F.Supp. 1167 (N.D.Cal., 1979).
cited Cited "see" Prompt Elec. Supply Co., Inc. v. Allen-Bradley Co.
E.D.N.Y · 1980 · signal: see · confidence high
See Omark Industries, Inc. v. Lubanko Tool Co., 266 F.2d 540 (2d Cir. 1959).
discussed Cited "see" Schroeter v. Ralph Wilson Plastics, Inc.
S.D.N.Y. · 1969 · signal: see · confidence high
See, Omark Industries, Inc. v. Lubanko Tool Co., 266 F.2d 540 (2d Cir. 1959); Reines Distributors, Inc. v. Admiral Corp., 31 F.R.D. 187 (S.D.N.Y.1962); Emerson Radio & Phonograph Corp. v. Hendrix, 20 F.R.D. 572 (S.D.N.Y.1957); Metro Corrugated Containers Inc. v. Owens-Illinois Glass Co., 185 F.Supp. 359 (E.D.N.Y.1960); 6 Moore’s Federal Practice, ¶ 56.17 [15], at 2524.
discussed Cited "see, e.g." AZ Automotive Corp. v. Atzen Industries, Inc. (In Re Aetna Industries, Inc.)
Bankr. D. Del. · 2006 · signal: see, e.g. · confidence low
Sept. 26, 1990)(“[W]here undisputed material facts establish the defendant’s liability and the only facts in dispute involve the amount of damages due the plaintiff because the plaintiffs prayer may be subject to set-off, summary judgment is appropriate.”); Chemetron Corp. v. Cervantes, 92 F.R.D. 26, 30 (D.P.R.1981)(“The fact that defendant’s counterclaim is compulsory does not absolutely preclude the entry of partial summary judgment, nor does the fact that the amount of [the defendant’s] counterclaim might exceed [the plaintiffs] claim.”); see, e.g., Omark Indus., Inc. v. Luban…
cited Cited "see, e.g." Schieffelin & Co., a Delaware Corporation, Cross-Appellant v. Valley Liquors, Inc., an Illinois Corporation, Cross-Appellee
7th Cir. · 1987 · signal: see, e.g. · confidence low
See, e.g., Omark Industries, Inc. v. Lubanko Tool Co., 266 F.2d 540 (2nd Cir.1959); Hartford Acc. & Indent.
cited Cited "see, e.g." Brunswick Corporation and Sherwood Medical Industries, Inc. v. David S. Sheridan and National Catheter Corporation
2d Cir. · 1978 · signal: see also · confidence low
See also Gaetano Marzotto, supra, 28 F.R.D. at 324-25 (distinguishing Omark Industries, Inc. v. Lubanko Tool Co., 266 F.2d 540 (2 Cir. 1959)).
Retrieving the full opinion text from the archive…
Omark Industries, Inc.
v.
Lubanko Tool Company, Inc., Maurice E. Fitzgerald, Paul Fessel, Russell Crichton, Di-Rock Corporation and Joseph Davis, Additional on Counterclaims
25320_1.
Court of Appeals for the Second Circuit.
May 14, 1959.
266 F.2d 540
Cited by 1 opinion  |  Published

266 F.2d 540

OMARK INDUSTRIES, INC., Plaintiff-Appellee
v.
LUBANKO TOOL COMPANY, Inc., Defendant-Appellant,
Maurice E. Fitzgerald, Paul Fessel, Russell Crichton, Di-Rock Corporation and Joseph Davis, Additional Defendants on Counterclaims.

No. 226.

Docket 25320.

United States Court of Appeals Second Circuit.

Argued March 12, 1959.

Decided May 14, 1959.

Charles Haydon, New York City (Dublirer & Haydon, New York City, on the brief), for defendant-appellant.

Alfred C. Turino, New York City, for plaintiff-appellee.

Before WASHINGTON, WATERMAN and MOORE, Circuit Judges.

MOORE, Circuit Judge.

1

Omark Industries, Inc., plaintiff-appellee, commenced this action to recover for goods sold and delivered and upon an account for the same. The defendant, Lubanko Tool Company, Inc., was a dealer in the New York area selling the products of plaintiff, a manufacturer of power tools and accessories for the construction industry. The parties entered into a franchise agreement on May 15, 1957. The purchase orders pursuant to which Omark shipped the goods in question are dated October 1957 through February 1958.

2

Lubanko answered by a general denial and alleged breach of the franchise agreement as an affirmative defense, together with several counterclaims against plaintiff and five additional defendants.

3

Judge Bruchhausen granted Omark's motion for summary judgment on its claim for $11,200.49, the amount demanded in the complaint. In his opinion he decided that there was no genuine issue as to any material fact alleged in the complaint, and that proof of breach of the franchise agreement as alleged by defendant in its answer would not establish the breach of a condition precedent to plaintiff's claim so as to give rise to an affirmative defense.

4

On appeal Lubanko argues: (1) that the suit was brought to enforce its promise to pay for goods, which promise is part of the franchise agreement and that because it has alleged breach of that agreement by Omark, summary judgment was not proper; (2) that the mutual promises of the parties to the agreement are dependent and that Omark may not enforce a contract the conditions of which it has violated; and (3) that counterclaims for damages in excess of plaintiff's demand, asserted for breach of the very contract upon which plaintiff sues, will defeat plaintiff's motion for summary judgment.

5

The basic flaw in Lubanko's argument is its assumption that Omark is suing on the franchise agreement. Actually, the agreement is not referred to in the complaint. Plaintiff relies on the purchase orders and invoices to establish its claim, and defendant does not plead any affirmative defense based on those documents. The granting of summary judgment was proper. Rule 54(b), Federal Rules of Civil Procedure, 28 U.S.C.A.

6

To protect Lubanko, however, the execution of the judgment will be stayed conditionally until the determination of the counterclaims. Rule 62(h), Federal Rules of Civil Procedure.

7

The judgment appealed from is affirmed and the case remanded with directions to the district court to stay the execution of the judgment upon the filing of a bond by Lubanko in favor of plaintiff to secure the payment of the judgment appealed from at the conclusion of the case, except as payment may be affected by any judgment against plaintiff on the counterclaims and that trial of the issues presented by the counterclaims proceed with all convenient expedition.