European American Bank v. Surgical Consultants, P.C.

308 A.D.2d 419, 764 N.Y.S.2d 693, 2003 N.Y. App. Div. LEXIS 9977

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 30, 2003
• Status: Published

Opinion

—Order, Supreme Court, New York County (Alice Schlesinger, J.), entered November 14, 2001, which, in an action by a bank against the corporate defendant for breach of a credit agreement and against the individual defendant on his guarantee, granted plaintiffs motion for partial summary judgment as against the individual defendant, and severed defendants’ counterclaim, unanimously affirmed, with costs.

Given a guarantee that is “absolute and unconditional in all events and not dischargeable or affected by any circumstance which may constitute a legal or equitable discharge,” a counterclaim that is not “inextricably intertwined with, or inseparable from” plaintiffs main claim cannot serve as a setoff against plaintiffs main claim, or otherwise forestall judgment thereon (see Banco do Estado de Sao Paulo v Mendes Jr. Intl. Co., 249 AD2d 137, 138 [1998]). Defendants’ counterclaim alleges that plaintiff imposed charges against the corporate defendant’s checking account that should have been imposed against the separate checking accounts of separate corporations of which the individual defendant is also a principal, and that the charges were otherwise unauthorized. Since such counterclaim does not pertain to the credit agreement and guarantee on which plaintiff sues, but to a previously executed checking account agreement, the motion court properly granted plaintiff summary judgment and severed defendants’ counterclaim. We have considered appellant’s other arguments and find them unavailing. Concur — Tom, J.P., Sullivan, Rosenberger, Lerner and Friedman, JJ.