Lackmann Food Service, Inc. v. E & S Vending Co.

— In an action to recover on promissory notes and guarantees of payment, the plaintiffs appeal from an order of the Supreme Court, Nassau County (McGinity, J.), entered June 7, 1985, which denied their motion for summary judgment in lieu of complaint pursuant to CPLR 3213. Ordered that the order is affirmed, with costs; and it is further, Ordered that the plaintiffs’ time to serve a complaint is extended until 20 days after the service upon them of a copy of this decision and order, with notice of entry, and the defendants shall serve their answer within 20 days after service of the complaint. The plaintiffs were not holders in due course. Consequently, the defendants’ counterclaim, alleging failure of consideration and lack of mutuality because all disputes and questions under the agreements were to be determined by the plaintiffs, presented a viable claim which arose from the underlying transaction. This claim is inseparable from the plaintiffs’ 367 cause of action. Under these circumstances, summary judgment was properly denied (see, Torres & Leonard v Select Professional Realties, 118 AD2d 467; Beninati v Hanley, 95 AD2d 816; Ssangyong [U.S.A.J Inc. v Sung Ae Yoo, 88 AD2d 572; Dorman v Cohen, 66 AD2d 411; Chisholm Ryder Co. v Munro Games, 58 AD2d 972; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3213:17, p 843). Niehoff, J. P., Rubin, Eiber and Kunzeman, JJ., concur.