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

FLEET BANK f/k/a Norstar Bank, Appellant, v. PETRI MECHANICAL CO., INC., et al., Respondents.

Decided: November 24, 1997

Before THOMPSON, J.P., and PIZZUTO, SANTUCCI and JOY, JJ. Daniel S. Komansky, Huntington Station, for appellant. Ross & Cohen, LLP, New York City (Mark Canizio, of counsel;  Alison Fee, on the brief), for respondents.

In an action to recover payments due under a loan note and guarantees, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Kutner, J.), dated January 22, 1997, as denied that branch of its motion which was for summary judgment dismissing the defendants' counterclaim.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the defendants' counterclaim is dismissed.

The plaintiff extended credit to the defendant Petri Mechanical Co., Inc., and in return obtained personal guarantees from the other defendants.   The guarantees contained language stating that they were “a continuing, absolute and unconditional guaranty of payment”, and that the guarantors were waiving “the right to interpose any defense * * * [and] any set-off or counterclaim of any nature or description”.   When Petri Mechanical Co., Inc., defaulted in its payments, the plaintiff commenced the instant action to collect on the note and the guarantees.   The defendants' answer interposed a counterclaim alleging that the plaintiff had violated various provisions of the Equal Credit Opportunity Act (15 U.S.C.A. § 1691 et seq.) in making the loans and requiring the guarantees.   The plaintiff moved, inter alia, for summary judgment dismissing the counterclaim on the ground that all of the guarantees contained a provision stating that the guarantors waived any counterclaims.   The Supreme Court denied that branch of the motion.   We reverse.

 As a general rule, a waiver of the right to assert a setoff or counterclaim is not against public policy and will be enforced in the absence of fraud or negligence in the disposition of collateral (see, Marine Midland Bank v. CMR Indus., 159 A.D.2d 94, 559 N.Y.S.2d 892;  Federal Deposit Ins. Corp. v. Marino Corp., 74 A.D.2d 620, 425 N.Y.S.2d 34;  Bank of New York v. Cariello, 69 A.D.2d 805, 415 N.Y.S.2d 65).   In the instant case, the defendants have not asserted either fraud or negligence in the disposition of collateral, and enforcement of the waiver provision will not violate public policy (see, North Fork Bank & Trust Co. v. Bernstein & Gershman, 201 A.D.2d 472, 607 N.Y.S.2d 135;  Extebank v. Marco Group, 194 A.D.2d 516, 599 N.Y.S.2d 973;  European Am. Bank v. Lofrese, 182 A.D.2d 67, 73, 586 N.Y.S.2d 816).   Accordingly, since the defendants clearly and unequivocally waived their right to interpose any counterclaims in this action, the counterclaim should have been dismissed as a matter of law.


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