Opinion
May 6, 1971
Order, Supreme Court, New York County, entered on November 20, 1970, denying plaintiff's motion for summary judgment pursuant to CPLR 3213 unanimously reversed on the law, and judgment is directed in favor of the plaintiff for the balance remaining due on the note in suit, together with appropriate interest, and defendants are directed to issue to plaintiff a stock certificate in its name for all of the outstanding shares of Boston Celtics Basketball Club, and to make an appropriate entry in the records of the Boston Celtics Basketball Club reflecting such ownership. This disposition is without prejudice to commencement of a separate action by defendants upon any claimed setoffs or counterclaims they may properly assert against plaintiff. Appellant shall recover of respondents $50 costs and disbursements of this appeal. The propriety of the commencement of the instant action by service of a notice of motion for summary judgment pursuant to CPLR 3213, is not properly before us. It might have been argued that the note at bar does not appear to be one solely for the payment of money, referable as it is to the provisions of a loan agreement, but the defendants did not question the procedure used by the plaintiff, did not object to it on this appeal, and it must thus be accorded our recognition. ( Stevenson v. News Syndicate Co., 302 N.Y. 81; Reilly v. Insurance Co. of North Amer., 32 A.D.2d 918; McKinney's Cons. Laws of N.Y., Book 7B CPLR 3213, Siegel, Commentary, p. 830; see, also, Seaman-Andwall Corp. v. Wright Mach. Corp., 31 A.D.2d 136.) The defenses raised by the defendants, both in briefs and on oral argument, relate to separate and other agreements, to which Celtics were not a party; Celtics may have been a beneficiary of these agreements, but these agreements are essentially unrelated to the transaction between Celtics and the Security National Bank, out of which the note sued upon arose. Trans National Communications, Inc., not here a defendant, may have valid claims as against the plaintiff Ballantine, but these claims are not available to Celtics as a defense, offset, or counterclaim in the action before us on the isolated issue of its liability upon the note. ( Rhode Is. Hosp. Trust Co. v. Claude Neon, Inc., 109 N.Y.S.2d 834, 838-839, modified on other grounds, 280 App. Div. 755.) These claimed defenses, or causes of action for positive relief, may be tested in the manner now made available to the defendants, if so advised. (See Pease Elliman v. 926 Park Ave. Corp., 23 A.D.2d 361, affd. 17 N.Y.2d 890; Omega Equities Corp. v. Levy, 34 A.D.2d 938; also, Seaman-Andwall Corp. v. Wright Mach. Corp., supra. What remains before us is the single note, executed by Celtics to the Security National Bank, guaranteed by Ballantine, and assigned to Ballantine upon Celtics' default, following a payment by Ballantine of the sum of $1,610,000, with interest. On the submission before us, we find no defense to the note, and judgment for plaintiff must be entered accordingly. Settle order on notice.
Concur — McGivern, J.P., Markewich, Nunez, McNally and Tilzer, JJ.