Beninati v. Hanley

— In an action on two promissory notes, commenced by service of a summons and notice of motion for summary judgment in lieu of a complaint (CPLR 3213), plaintiff appeals from an order of the Supreme Court, Nassau County (Spatt, J.), dated June 17,1982, which denied her motion. Order affirmed, with costs. 817 Plaintiff’s time to serve a complaint is extended until 20 days after service upon her of a copy of the order to be made hereon, with notice of entry, and defendants shall serve their answer within 20 days after service of the complaint. Defendants’ proposed counterclaim, alleging fraud and deceit on the part of the plaintiff, is a viable claim which arose from the underlying transaction and is inseparable from plaintiff’s cause of action. Under these circumstances, summary judgment was properly denied (see Fine v Di Stanti, 79 AD2d 673; Ssangyong [US.A.] Inc. v Sung Ae Yoo, 88 AD2d 572; Magi Communications v Jac-Lu Assoc., 65 AD2d 727; Chisholm Ryder Co. v Munro Games, 58 AD2d 972; Seneca Trucking Co. v Overmeyer Co., 36 AD2d 894; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3213:17, p 843). Damiani, J. P., Mangano, Gibbons and Niehoff, JJ., concur.