Kellman v. Bierman

45 A.D.2d 1018, 358 N.Y.S.2d 187, 1974 N.Y. App. Div. LEXIS 4269

Opinion

In an action upon promissory notes, plaintiff appeals from an order of the Supreme Court, Queens County, dated March 6, 1974, which denied his motion, pursuant to CPLR 3213, for summary judgment in lieu of a complaint. Order reversed, on the law, with $20 costs and disbursements, and motion granted. The setoff claims advanced by the defendant-guarantor arose independently of the “ buy-out agreement ” entered into by the plaintiff and the obligors and do not constitute a partial failure of the consideration for that agreement. Hence, these claims, whatever their merit, are not available to the defendant in this action (Elliott v. Brady, 192 N. Y. 221; Walcutt v. Clevite Corp., 13 N Y 2d 48, 55-56; Gillespie v. Torrance, 25 N. Y. 306; Lasher v. Williamson, 55 N. Y. 619). In these circumstances and in the absence of genuine factual issues, summary judgment is proper (cf. Badische Bank v. Lionel Systems, 36 A D 2d 763; Seaman-Andwall Corp. v. Wright Mach. Corp., 31 A D 2d 136). Hopkins, Acting P. J., Shapiro, Cohalan, Christ and Benjamin, JJ., concur.