APEX FUNDING SOURCE LLC v. B & M Investments, Inc., et al., Defendants. (2025)

Order, Supreme Court, New York County (Louis L. Nock, J.), entered November 25, 2024, which denied plaintiff's motion for summary judgment as against defendant Blue Earth Resources, Inc. on the cause of action for breach of contract as against it (first cause of action) and as against defendant Scott M. Boruff on the cause of action for breach of contract as against him (second cause of action), unanimously reversed, on the law, with costs, the motion granted, and the matter remanded for an inquest on attorneys' fees.

Supreme Court should have granted plaintiff's motion for summary judgment on its first and second causes of action.  The mere assertion of counterclaims does not preclude summary judgment in plaintiff's favor.  Rather, summary judgment should be denied only where a counterclaim that seeks damages in excess of a plaintiff's claim is inextricably intertwined with the claim and presents issues of fact regarding the claims in the complaint (see Spicer v. GardaWorld Consulting [UK] Ltd., 198 A.D.3d 522, 523, 152 N.Y.S.3d 797 [1st Dept. 2021], lv denied 38 N.Y.3d 903, 2022 WL 839483 [2022];  compare Illinois McGraw Elec. Co. v. John J. Walters, Inc., 7 N.Y.2d 874, 876–877, 196 N.Y.S.2d 1003, 164 N.E.2d 872 [1959] with Pease & Elliman v. 926 Park Ave. Corp., 23 A.D.2d 361, 362–363, 260 N.Y.S.2d 693 [1st Dept. 1965], affd 17 N.Y.2d 890, 271 N.Y.S.2d 992, 218 N.E.2d 700 [1966]).

This action does not present such a situation.  On the contrary, Blue Earth's counterclaims, which involve a nonparty and assert causes of action for intentional interference with contract and intentional interference with business relationship, are based on a letter that plaintiff sent long after Blue Earth had allegedly defaulted on the loan and are entirely separate and independent from Blue Earth's breach of the loan agreement and Boruff's breach of the personal guaranty (see Banco Do Estado de Sao Paulo v. Mendes Jr. Intl. Co., 249 A.D.2d 137, 138, 672 N.Y.S.2d 28 [1st Dept. 1998];  Galaxy Intl. v. Magnum–Royal Publs., 54 A.D.2d 875, 875–876, 388 N.Y.S.2d 583 [1st Dept. 1976];  Dalminter, Inc. v. Dalmine, S.p.A., 29 A.D.2d 852, 853, 288 N.Y.S.2d 110 [1st Dept. 1968], affd 23 N.Y.2d 653, 295 N.Y.S.2d 337, 242 N.E.2d 488 [1968]).  The record also makes clear liability on plaintiff's contract claims against Blue Earth and Boruff is conceded.  Accordingly, Supreme Court should have awarded summary judgment on plaintiff's first and second causes of action without regard to the existence of Blue Earth's counterclaims (see European Am. Bank v. Surgical Consultants, 308 A.D.2d 419, 419, 764 N.Y.S.2d 693 [1st Dept. 2003];  Banco Do Estado De Sao Paulo, 249 A.D.2d at 138, 672 N.Y.S.2d 28;  Galaxy Intl., 54 A.D.2d at 876, 388 N.Y.S.2d 583).

Finally, we reject defendants' assertion that summary judgment would be premature because plaintiff has not yet responded to Blue Earth's discovery requests. Because, as noted, plaintiffs' causes of action and Blue Earth's counterclaims constitute entirely separate claims, there is no basis to suggest that discovery would lead to any facts essential to opposing plaintiff's motion (see CPLR 3212[f]).