EUROPEAN AMERICAN BANK v. Peter J. Corines, Defendant-Appellant.

Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

EUROPEAN AMERICAN BANK, Plaintiff-Respondent, v. SURGICAL CONSULTANTS, P.C., Defendant, Peter J. Corines, Defendant-Appellant.

Decided: September 30, 2003

TOM, J.P., SULLIVAN, ROSENBERGER, LERNER and FRIEDMAN, JJ. Bruce H. Babitt, for Plaintiff-Respondent. Peter M. Agulnick, for Defendant-Appellant.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered November 14, 2001, which, in an action by a bank against the corporate defendant for breach of a credit agreement and against the individual defendant on his guarantee, granted plaintiff's motion for partial summary judgment as against the individual defendant, and severed defendants' counterclaim, unanimously affirmed, with costs.

Given a guarantee that is “absolute and unconditional in all events and not dischargeable or affected by any circumstance which may constitute a legal or equitable discharge,” a counterclaim that is not “inextricably intertwined with, or inseparable from” plaintiff's main claim cannot serve as a setoff against plaintiff's main claim, or otherwise forestall judgment thereon (see Banco do Estado de Sao Paulo v. Mendes Jr. Intl. Co., 249 A.D.2d 137, 138, 672 N.Y.S.2d 28).   Defendants' counterclaim alleges that plaintiff imposed charges against the corporate defendant's checking account that should have been imposed against the separate checking accounts of separate corporations of which the individual defendant is also a principal, and that the charges were otherwise unauthorized.   Since such counterclaim does not pertain to the credit agreement and guarantee on which plaintiff sues, but to a previously executed checking account agreement, the motion court properly granted plaintiff summary judgment and severed defendants' counterclaim.   We have considered appellant's other arguments and find them unavailing.