Kellman v. Bierman

Appellate Division of the Supreme Court of New York

Kellman v. Bierman

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 29, 1974

StatusPublished

Cited by1 cases

This text of 45 A.D.2d 1018 (Kellman v. Bierman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kellman v. Bierman, 45 A.D.2d 1018, 358 N.Y.S.2d 187, 1974 N.Y. App. Div. LEXIS 4269 (N.Y. Ct. App. 1974).

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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.

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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.

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Bluebook (online)

45 A.D.2d 1018, 358 N.Y.S.2d 187, 1974 N.Y. App. Div. LEXIS 4269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kellman-v-bierman-nyappdiv-1974.

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