Breese v. Morris Distributing Co.

Order unanimously modified on the law and as modified affirmed with costs to plaintiffs, in accordance with the following memorandum: Plaintiffs seek, in part, civil penalties and attorney’s fees for alleged violations of the Employee Retirement Income Security Act of 1974 (29 USC § 1001 et seq. [ERISA]). Such claims lie within the exclusive jurisdiction of the Federal courts (29 USC § 1132 [e]; Retail Shoe Health Commn. v Reminick, 62 NY2d 173, cert denied sub nom. Reminick v Maltz, 471 US 1022). We modify the order to add a provision that defendants are granted summary judgment dismissing the third cause of action to the extent that it seeks civil penalties and attorney’s fees for alleged violations of ERISA, and we otherwise affirm. (Appeal from order of Supreme Court, Monroe County, Provenzano, J. — summary judgment.) Present — Denman, J. P., Green, Pine, Lawton and Davis, JJ.