Rothschild v. Industrial Test Equipment Co.

—In an action to recover a debt, the defendant appeals from an order of the Supreme Court, Nassau County (McCabe, J.), dated February 6, 1992, which (1) granted the plaintiff’s motion to dismiss the first and second counterclaims, and (2) denied its cross motion to dismiss the complaint. Ordered that the order is affirmed, with costs. The Supreme Court properly granted the plaintiff’s motion to dismiss the defendant’s first and second counterclaims since they were already time barred pursuant to CPLR 213 when the claim in the complaint was interposed (see, CPLR 203 [d]). Under these circumstances, the defendant’s contention that the court overlooked the provisions of CPLR former 203 (c) [272] (now CPLR 203 [d]), which is raised for the first time on appeal, is without merit. The defendant may interpose, as a recoupment, any claim arising out of the same transaction alleged in the complaint, but it cannot obtain affirmative relief as requested in its first and second counterclaims (see, McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C203:9, at 160). Thus, dismissal of the first and second counterclaims was proper, but the affirmative defenses based on the same allegations remain viable. We have considered the defendant’s remaining contentions and find them to be without merit. Rosenblatt, J. P., Ritter, Pizzuto and Altman, JJ., concur.