Mint Factors v. Goldman

74 A.D.2d 599, 424 N.Y.S.2d 513, 1980 N.Y. App. Div. LEXIS 10246

Opinion

In an action to foreclose a mortgage (1) defendant appeals from so much of an order of the Supreme Court, Nassau County, entered January 26, 1979, as dismissed her counterclaim for money damages and denied her cross motion for summary judgment and (2) plaintiff cross-appeals from so much of the same order as denied its motion for summary judgment and directed it to submit to an examination before trial. Order affirmed, without costs or disbursements. We agree with Special Term that a counterclaim may be dismissed pursuant to CPLR 3215 (subd [c]) where, as here, a reply was not timely interposed by the plaintiff, and defendant failed to institute proceedings within a year to obtain a default judgment. While counterclaims are not specifically mentioned in CPLR 3215, the legislative history reveals that the statute was intended to apply to claims, asserted as counterclaims, cross claims and third-party claims, as well as those included in the complaint (see Advisory Committee on Practice and Procedure, Final Rep., p A-474 [Advance Draft, 1961]; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3215.08). We note, moreover, that the instant counterclaim is clearly without merit. The right on which defendant seeks recovery belongs to a corporation, Kalosal Industries, Ltd., and on the facts presented, defendant has no right to sue "derivatively” in the name of the corporation. We have examined the remaining contentions of the parties, and find them to be devoid of merit. Mollen, P. J., Cohalan, O’Connor and Weinstein, JJ., concur.