LAUGHLIN v. INTEGRATED WASTE SERVICES INC (1999)

 Plaintiff sold his business to defendant Laughlin Services, Inc. (LSI).   As part of the asset purchase agreement, LSI agreed to deliver certificates for unregistered stock to plaintiff's escrow agent within eight months of the closing date for the purchase of the business.   Supreme Court properly granted plaintiff's motion for partial summary judgment on the first cause of action seeking the value of that stock.   Although LSI registered the stock within two years as required by another provision of the asset purchase agreement, it nevertheless breached the agreement by failing to deliver the certificates for the unregistered stock until 18 months after the closing date.

 Contrary to the contention of LSI, partial summary judgment is not precluded by its counterclaim.   The counterclaim alleges fraudulent inducement and seeks monetary damages, not rescission of the asset purchase agreement, and is not “so interrelated with * * * plaintiff's cause of action that entry of judgment should be withheld” (Griswold Co. v. Cortland Glass Co., 138 A.D.2d 869, 870, 525 N.Y.S.2d 973;  cf., Eurotech Dev. v. Adirondack Pennysaver, 224 A.D.2d 738, 636 N.Y.S.2d 956).

 Finally, the court did not err in deciding plaintiff's motion before LSI had completed deposing plaintiff.   LSI was not seeking further evidence in opposition to plaintiff's motion, but rather was seeking further evidence to support its counterclaim.

Order unanimously affirmed without costs.

MEMORANDUM: