(concurring in part and dissenting in part). I disagree with my colleagues’ view that the dispositive issue on this appeal is whether the contract alleged by the plaintiffs falls within one of the exceptions to the rule in Illinois Brick Co. v Illinois (431 US 720). The issue is much broader, for it concerns the relationship between Federal antitrust policies and access to the State courts for the purpose of common-law actions. More specifically, however, we must determine whether the policies enunciated in Illinois Brick preclude an indirect purchaser of goods from bringing a State common-law action against the direct purchaser to recover damages for breach of contract or moneys had and received when the purpose of the action is recovery of a portion of the sums the direct purchaser received as a result of an antitrust suit against the manufacturer. Because I believe that Illinois Brick does not preclude State courts from adjudicating common-law contract disputes, I dissent insofar as I would modify the orders of Special Term by denying those branches of defendant’s motions which were for summary judgment dismissing plaintiffs’ claims to a share of defendant’s antitrust settlement. I agree, however, that Special Term’s denial of leave to amend defendant’s answers and plaintiffs’ cross motions for partial summary judgment should be affirmed.
I
In Illinois Brick Co. v Illinois (supra), the Supreme Court held that with certain limited exceptions an indirect purchaser of goods is not an injured person within the scope of the Clayton Act § 4 (15 USC § 15) and thus cannot sue the manufacturer of those goods for Federal antitrust violations. The principal reason enunciated by the court for its decision to so narrowly construe the Federal statute was its fear that a contrary decision "would transform treble-damages actions into massive efforts to apportion the recovery among all potential plaintiffs that could have absorbed part of the overcharge—from direct purchasers to middlemen to ultimate consumers” (Illinois Brick Co. v Illinois, supra, at p 737). This, the Supreme Court believed, would "add whole new dimensions of complexity to treble-damages suits and seriously *28undermine their effectiveness” (Illinois Brick Co. v Illinois, supra, at p 737). Additionally, the court expressed its concern that to allow theoretically injured parties to join such Federal court actions would so increase the cost of bringing such actions and decrease the potential rewards that it might reduce the incentive to sue and thus "seriously impair this important weapon of antitrust enforcement” (Illinois Brick Co. v Illinois, supra, at p 745). Defendant contends, and the majority holds, that the policy enunciated by the Supreme Court applies outside the context of a Federal antitrust action and bars State court action by an indirect purchaser against its seller to recover antitrust proceeds recovered by the seller, even though the claim is based upon a contract between the indirect purchaser and the seller.
Clearly, Congress has not preempted the field of antitrust law by passage of the Federal antitrust statutes (see, Jones v Rath Packing Co., 430 US 519, reh denied 431 US 925; Cloverleaf Co. v Patterson, 315 US 148). A State remains free to regulate in the area of antitrust despite the existence of the Federal antitrust provisions, so long as the State statutes do not conflict with the Federal law. Several States have antitrust laws that provide a remedy for indirect purchasers (see, e.g., Ala Code § 6-5-60 [a]; Cal Business and Professions Code § 16750; Hawaii Rev Stats § 480-14 [c]; Ill Ann Stats, ch 38, § 60-7 [2]; Miss Code Ann § 75-21-9; Wis Stats Ann § 133.18 [1]), but the validity of these statutes remains a matter of debate (compare, State of California v California & Hawaiian Sugar Co., 588 F2d 1270, 1273, cert denied 441 US 932, with Russo & Dubin v Allied Maintenance Corp., 95 Misc 2d 344, 347, and In re Wiring Device Antitrust Litigation, 498 F Supp 79; see, Note, State Indirect Purchaser Statutes: The Preemptive Power of Illinois Brick, 62 B U L Rev 1241; Note, Indirect Purchaser Suits Under State Laws: A Detour Around the Illinois Brick Wall, 34 Stan L Rev 203; Cavanagh, The Illinois Brick Dilemma: Is There a Legislative Solution?, 48 Alb L Rev 273, 309-310). That debate is not before us, however, because plaintiffs’ claims are not derived from a right created by statute. Plaintiffs are purchasers pursuant to oral contracts of sale for cost plus 1%, who seek to recover from their seller in common-law actions to recover damages for breach of contract and for money had and received, amounts subsequently received by the seller which reduced the seller’s cost for the goods.
I do not believe that the common-law claims of an indirect *29purchaser are preempted by Federal antitrust law. The Supreme Court is "generally reluctant to infer pre-emption” (Exxon Corp. v Governor of Md., 437 US 117, 132, reh denied sub nom. Shell Oil Co. v Governor of Md., 439 US 884) in the area of antitrust, even in the face of an arguable conflict. In this case, a finding of preemption requires the inference that the Supreme Court intends the policy it enunciated in Illinois Brick (supra) with reference to access to the Federal courts to extend beyond Federal antitrust actions. Such an inference is unjustified. Preemption can be found only if the State action sought to be prohibited is " 'an obstacle to the accomplishment and execution of the full purposes and objectives of Congress’ ” (Jones v Rath Packing Co., supra, at p 526, quoting from Hines v Davidowitz, 312 US 52, 67).
In Illinois Brick (supra), the Supreme Court was concerned solely with the proper interpretation and application of the Federal antitrust laws and the effect of that interpretation on the Federal courts, including the right of access to those courts to vindicate the rights of indirect purchasers. The court evinced no intention to preempt substantive State laws governing contracts or the traditional common-law remedies for enforcing valid contracts. That an indirect purchaser may not sue a manufacturer for Federal antitrust violations for reasons that relate to access to the Federal courts and diligent enforcement of a specific antitrust statute does not mean that a direct purchaser, who is entitled to bring such a suit, cannot agree to pass on the benefits of that suit to its customers. Illinois Brick spoke to the question of who can bring a Federal antitrust claim; it has no bearing on the validity of a contract for the subsequent disposition of the proceeds of such an action.
For the same reasons, Illinois Brick (supra) cannot be viewed as establishing a public policy which would prohibit enforcement of the contracts plaintiffs allege. Of course, " '[a] contract which binds one of the parties to do that which is contrary to the policy of the state or nation is void’ ” (Matter of Rhinelander, 290 NY 31, 39, quoting from Matter of Hughes, 225 App Div 29, 31, affd 251 NY 529), and if Dairy-lea’s alleged promises to remit part or all of the antitrust settlements to plaintiffs are violative of the public policy of the United States, the contracts are illegal and cannot be enforced (see, Silvera v Safra, 79 Misc 2d 919; Klein v Comenzó Co., 207 NYS2d 739; Kaiser-Frazer Corp. v Otis & Co., 195 F2d 838, cert denied 344 US 856). Although the term *30"public policy” is inherently vague and incapable of precise definition, it is generally accepted that for a contract to be void as violative of public policy it must either contravene a statute or some basic principle of common law (see, Hartford Acc. & Indem. Co. v Village of Hempstead, 48 NY2d 218, 225; Straus & Co. v Canadian Pac. Ry. Co., 254 NY 407) or its performance must in some significant way be injurious to an established public interest (see, Proctor Troy Props. Co. v Dugan Store, 191 App Div 685). An otherwise valid agreement should not be set aside on these grounds unless it is clearly repugnant to a strong public policy (see, e.g., Cheatham v Cheatham, 93 Misc 2d 576; Kloberg v Teller, 103 Misc 641; 21 NY Jur 2d, Contracts, § 145). I see nothing in Illinois Brick that establishes a national policy which prohibits the direct purchaser of goods from promising to remit part or all of the proceeds of a Federal antitrust action to its customers simply because those customers were not themselves entitled to bring the antitrust action. Furthermore, I believe it is mistaken policy for the State judiciary to strain to perceive Federal bars to access to State courts in matters involving obligations arising under State common law.
The successful plaintiff in an antitrust action is naturally entitled to put the amount recovered to any lawful purpose it wishes. Patently, it is free to remit all or part of the amount recovered to its customers should it elect to do so, for example, to further good customer relations. I see no reason why it should not similarly be allowed, prior to commencing an antitrust suit that only it is authorized to bring, to contractually bind itself to remit all or part of the proceeds of such a suit to its customers. If plaintiffs’ interpretation of the alleged oral agreements is correct, that is in effect what Dairylea has agreed to do. Such a contract is not violative of any preemptive public policy established in Illinois Brick (431 US 720, supra) Moreover, a State common-law action to enforce such an agreement can in no way serve to unduly complicate a prior Federal antitrust action for the simple reason that it is not a part of that Federal action. In short, to the extent there may exist contracts requiring Dairylea to remit to plaintiffs any portion of the antitrust settlement which constitutes a reduction in the cost of the milk cartons, Federal antitrust policy does not bar an action to recover that amount. Illinois Brick simply dealt with the application of the Federal antitrust laws in Federal courts; in no way does it limit or impair contractual rights enforceable by traditional State common-*31law actions (see also, Caraway v Ford Motor Co., 148 F Supp 776).
For the same reasons, Illinois Brick (supra) would not bar an action for moneys had and received as an alternative to recovery upon the contract (see, Darmsteadter v Tandberg of Am., 104 AD2d 355). Although considered an action at law, a suit for moneys had and received is based upon equitable principles of unjust enrichment (see, Federal Ins. Co. v Grove-land State Bank, 37 NY2d 252, 258; Friar v Vanguard Holding Corp., 78 AD2d 83, 89). The essential elements of such an action are threefold: the defendant must have received moneys properly belonging to the plaintiff; the defendant must have been benefited thereby; and considerations of justice and good conscience preclude allowing the defendant to retain the moneys (see generally, Schank v Schuchman, 212 NY 352, 358-359; 22 NY Jur 2d, Contracts, § 451). Contrary to Dairylea’s contention, it is not necessary that the defendant’s initial possession of the moneys be wrongful (Friar v Vanguard Holding Corp., supra, at p 89; see, Simonds v Simonds, 45 NY2d 233, 242; Baratta v Kozlowski, 94 AD2d 454, 464). In the instant cases, plaintiffs have alleged all the necessary elements of such actions and Dairylea has not met its burden of showing that plaintiffs cannot make out their cases. Accordingly, Dairylea is not entitled to summary judgment dismissing those claims.
II
Defendant’s further argument is that regardless of Illinois Brick (supra), the underlying contracts are void because they are not evidenced by sufficient writings to satisfy the requirements of the Statute of Frauds. As noted, Special Term denied those branches of Dairylea’s motions which were for leave to amend its answers not because the delay in asserting the affirmative defense of Statute of Frauds had prejudiced plaintiffs (see, CPLR 3025 [b]; Surlak v Surlak, 95 AD2d 371; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3025:6, p 477), but rather because it found the defense to be without merit. Dairylea has raised no objection to Special Term’s decision to consider the merits of the proposed amendments on its applications for leave to amend. Indeed, in its brief, Dairylea has urged us to consider the merits of the defense. Moreover, since the applications for leave to amend were combined with applications for summary *32judgment, Dairylea had a full opportunity to present its proof on the issue. Accordingly, because we agree that Dairylea’s Statute of Frauds defense is meritless, we need not determine whether it would prejudice plaintiffs to allow the amendment at this late date (see, Goldstein v Brogan Cadillac Oldsmobile Corp., 90 AD2d 512; Sharapata v Town of Islip, 82 AD2d 350, 362, affd 56 NY2d 332; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3025:ll, p 481).
The oral agreements concededly provide for the sale of packaged milk and milk products by Dairylea to plaintiffs. In dispute is the proper interpretation of that portion of the contracts which required Dairylea to charge its costs plus 1% for the milk cartons it provided to plaintiffs. It is plaintiffs’ position that these contractual provisions refer to Dairylea’s final cost as reduced by the antitrust proceeds and rebates, whereas Dairylea maintains that these terms are limited to its costs as they appeared to be at the time of delivery. Dairylea contends that if these provisions are interpreted so as to require Dairylea to reimburse plaintiffs for amounts subsequently received by Dairylea which serve to reduce the cost of the cartons, the agreements are violative of both the Statute of Frauds provisions contained in Uniform Commercial Code article 2 (UCC 2-201 [1]) and that of General Obligations Law § 5-701 (a) (1). The Statute of Frauds contained in the Uniform Commercial Code is patently inapplicable to these oral agreements. UCC 2-201 (3) (c) specifically provides that the statute does not serve as a bar to claims concerning goods that have already been delivered and accepted or paid for pursuant to an oral agreement, and the plaintiffs here seek to recover a purported overpayment for goods that have been both delivered and accepted and paid for. Hence, this section cannot bar plaintiffs’ claims (see, L. Fatato, Inc. v Decrescente Distrib. Co., 86 AD2d 600).
No such ameliorative provision limits the applicability of General Obligations Law § 5-701 (a) (1), the relevant part of which provides that absent sufficient written memoranda an oral agreement is void if it cannot be performed within one year from the making of the contract. Although complete performance by both parties will take a contract out of this statute (i.e., Dodge v Crandall, 30 NY 294; 56 NY Jur, Statute of Frauds, §§ 304-305), it is well settled in New York that neither partial performance by both parties nor complete performance by only one party will save an agreement that cannot be performed within a year (see, e.g., Meyers v Waverly *33Fabrics, 65 NY2d 75; Montgomery v Futuristic Foods, 66 AD2d 64). The doctrine of partial performance, which may in certain limited situations save a contract involving an interest in realty from the effects of the Statute of Frauds (see, Anostario v Vicinanzo, 59 NY2d 662; Sleeth v Sampson, 237 NY 69), is inapplicable to actions at law based on a contract that cannot be performed within one year (Wahl v Barnum, 116 NY 87, 98; Zimmerman v Zimmerman, 86 AD2d 525; 56 NY Jur, Statute of Frauds, § 297; see, Whitney, Contracts § 75, at 241 [6th ed]). Thus, if the instant contracts are incapable of performance within a year, they are void and plaintiffs’ contract actions must fail.
The criteria for determining whether a contract is within the statute turn not on whether the contract is actually performed within the year, but rather on whether by its express terms or by necessary implication the agreement is one which cannot be performed within a year (see, e.g., North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171, 175-176; Trustees of First Baptist Church v Brooklyn Fire Ins. Co., 19 NY 305, 307; 2 Corbin, Contracts § 444 [1950]; 3 Williston, Contracts § 495 [3d ed]). The statute, moreover, is to be interpreted narrowly and applies only to those contracts "which by their very terms have absolutely no possibility in fact and law of full performance within one year” (D & N Boening v Kirsch Beverages, 63 NY2d 449, 454). Thus, if there exists any possibility, however remote, that the contract could be performed within a year, it is not within the statute and may be enforced if otherwise valid (see, Freedman v Chemical Constr. Corp., 43 NY2d 260, 265; Warner v Texas & Pac. Ry., 164 US 418, 434). Nor, if the contract can in some manner be performed within a year, is it relevant that it may also "be capable of an indefinite continuance” (Trustees of First Baptist Church v Brooklyn Fire Ins. Co., supra, at p 307).
The contracts at issue here were contracts of indefinite duration which did not provide for termination at some specific time or upon the occurrence of a particular event. Thus, unless they were terminable without a breach and within a year by either party, or at least by Dairylea (see, North Shore Bottling Co. v Schmidt & Sons, supra, at p 177, n 3), the law would regard them as incapable of performance within a year and therefore within the Statute of Frauds (D & N Boening v Kirsch Beverages, supra, at pp 456-458; Zupan v Blumberg, 2 NY2d 547). Plaintiffs, however, have provided affidavits by participants to the oral agreements originally entered into by *34the parties who declare unequivocally that the agreements were terminable at will. Dairylea, on the other hand, has sought to counter these evidentiary showings with affidavits by an employee who was not involved in negotiations with any of the plaintiffs until several years after the original agreements were entered into and who merely stated that to the best of his knowledge the agreements were not terminable at will. In the absence of any evidence contradicting plaintiffs’ proof that the business relationships between the parties were terminable at will, there can be no merit to this aspect of Dairylea’s belated attempt to raise the affirmative defense of Statute of Frauds.
Somewhat more persuasive at first perusal is Dairylea’s remaining contention that, even assuming the parties were otherwise free to terminate the contracts at will, if plaintiffs’ interpretation of the contracts is correct, Dairylea could never completely perform the contracts because it would always be under a continuing obligation to remit to plaintiffs any amount it might receive at some later date which would reduce the cost of the cartons it had previously sold to plaintiffs. This argument is flawed, however, because it turns the applicable criteria upside down. The test for determining whether a particular contract is within or without the statute is not whether some future event may occur which will render performance impossible within the year, but rather whether the contract by its own terms renders performance within a year impossible. If plaintiffs’ interpretation is correct, the contracts at issue simply required Dairylea to charge plaintiffs its cost for the milk cartons, plus 1%. There is nothing inherently impossible in determining the cost of goods within a year. As it happened—if plaintiffs’ view of the contracts ultimately prevails—the cost of the milk cartons involved in these cases was subsequently reduced. This was not a necessary result of the terms of the contracts, however, but rather of the unanticipated antitrust recovery.
The contracts did not require Dairylea to purchase the milk cartons under conditions that would render it unable to determine their final cost for several years. Certainly, Dairy-lea was under an obligation to act in good faith and was required to purchase the goods in a reasonable manner for a fair price (see, 22 NY Jur 2d, Contracts, § 258; see generally, Clark v Fleischmann Vehicle Co., 187 NYS 807). The obligations imposed by such a contract were discussed by the First Department in Title Guar. & Trust Co. v Pam (192 App Div *35268, 322, affd, 232 NY 441, rearg denied 233 NY 530), which concluded that "[a] contract to do work upon a basis of cost plus a stipulated commission does not mean that the contractor has the right to expend any amount of money he may see fit upon the work, regardless of the propriety, necessity or honesty of the expenditure, and then compel repayment by the other party, who has confided in his integrity, ability and industry”. None of the parties to the actions suggest that this obligation would extend so far as to require Dairylea, assuming it acted reasonably in purchasing the cartons, to subsequently commence an antitrust action in order to decrease the cost of the goods. Rather, plaintiffs’ contention is that having voluntarily acted to obtain the antitrust funds, Dairylea then became obligated to remit to plaintiffs that portion of the money attributable to cartons sold to plaintiffs. Dairylea may not transform a contract which could have been completely performed within a year into one incapable of performance within a year by unilateral actions not specifically required by the contracts but which may have the effect of resurrecting otherwise defunct contractual obligations. Indeed, even had the contracts required Dairylea to seek to reduce its costs by an antitrust action against the carton manufacturers, the contracts would nonetheless be outside the statute since it is not impossible—even if it is unlikely—that such a claim could be resolved within the year.
We emphasize that these contracts did not subject Dairylea to a continuing negative covenant which it would never be able to completely perform (see, Meyers v Waverly Fabrics, 65 NY2d 75, supra; Polykoff Adv. v Houbigant, Inc., 43 NY2d 921). Instead, Dairylea’s obligation was terminable as soon as it delivered the goods and accurately determined its cost. Nor are these contracts analogous to those requiring an employer to pay an employee commissions on all sales to customers originally obtained by the employee even with respect to sales made after the employment relationship terminates, for in those cases the employer is not free to simply refuse to accept such future sale orders, and thus the termination of. its obligations is subject to the whims of third parties (see, Zupan v Blumberg, 2 NY2d 547, 552, n, supra; Nat Nal Serv. Stas. v Wolf, 304 NY 332). In the instant cases, if plaintiffs’ interpretation of the agreements is accepted, Dairylea was unable to completely perform within the year only because it voluntarily brought an antitrust claim and thus purportedly became unable to determine its costs until it received the antitrust *36settlement. This time span was not a necessary result of any contractual obligations, however, and did not render the contracts incapable of performance within a year by their own terms. Indeed, Dairylea’s argument would place almost every oral contract within the statute, since there always exists the possibility that some events will render performance within the year impossible and thus subject a party to a continuing obligation.
Since the oral agreements at issue here were susceptible of performance within a year, they are not subject to General Obligations Law § 5-701 (a) (1). Accordingly, Special Term acted properly in denying Dairylea’s applications for leave to amend its answers to include the affirmative defense of the Statute of Frauds. Because the contract actions are not barred by Federal antitrust policy, however, Special Term erred in granting Dairylea summary judgment dismissing plaintiffs’ claims to a part of the antitrust settlement.
Ill
Finally, I conclude that plaintiffs are not entitled to partial summary judgment on any of their causes of action. Although the parties agree that they entered into contracts under which Dairylea was to provide the plaintiffs with milk cartons at cost plus 1%, they disagree sharply as to whether the term "cost” referred to Dairylea’s "cost” at the time of sale or whether it required Dairylea to ascertain its final "cost” by deducting any amounts subsequently received by Dairylea and which were attributable to the purchase of the cartons it sold to plaintiffs. Nowhere in their affidavits in support of their cross motions for partial summary judgments do the affiants declare that the question of reimbursement for subsequent reductions in cost was specifically discussed during the contract negotiations or expressly provided for in the agreements. Rather, it is plaintiffs’ position that such an interpretation is implicit in the agreements and is sustained by the custom and usage of the industry. Therefore, a plenary trial will be necessary to determine whether in fact the interpretation is implicit, whether there existed such a custom and usage in the industry when these contracts were negotiated, and, with respect to the claims to a portion of the antitrust settlement, whether that custom and usage is broad enough to encompass so unusual an event as a subsequent antitrust recovery. Thus, plaintiffs’ cross motions were properly denied.
*37Bracken 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.
Three orders of the Supreme Court, Queens County, each dated March 12, 1983, affirmed, without costs or disbursements.