From Casetext: Smarter Legal Research

Seneca Trucking Co., Inc. v. D.H. Overmeyer

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 1, 1971
36 A.D.2d 894 (N.Y. App. Div. 1971)

Opinion

April 1, 1971

Appeal from the Erie Special Term.

Present — Goldman, P.J., Marsh, Witmer, Cardamone and Henry, JJ.


Judgment and order insofar as appealed from unanimously reversed, with costs, and motion denied. Memorandum: In granting plaintiff's motion for summary judgment on the cause of action alleged in the complaint and allowing the counterclaims asserted in defendants' answer to remain, the court violated "the well established rule that it is improper to award summary judgment where there exists a meritorious counterclaim for an amount equal to or greater than that demanded in the complaint". ( Illinois McGraw Elec. Co. v. John J. Walters, Inc., 7 N.Y.2d 874, 876-877; see, also, Fort William Henry Corp. v. Lake George Inn, 27 A.D.2d 884; Obedin v. Tennyson Court, 23 A.D.2d 852; Hunting Supply Corp. v. Febrey, 22 A.D.2d 1010; Dietz v. Glynne, 221 App. Div. 329.) Plaintiff has not appealed from this determination and the finding that the counterclaims are meritorious is, therefore, the law of the case. The allegations of the counterclaim asserted by defendant, if established, would defeat plaintiff's right to recover on the cause of action alleged in the complaint, and the counterclaims are so inseparable from plaintiff's cause of action that entry of judgment should be withheld pending a plenary trial. (See Dalminter, Inc. v. Dalmine, S.p.A., 29 A.D.2d 852, affd. 23 N.Y.2d 653; Pease Elliman v. 926 Park Ave. Corp., 23 A.D.2d 361, affd. 17 N.Y.2d 890.)


Summaries of

Seneca Trucking Co., Inc. v. D.H. Overmeyer

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 1, 1971
36 A.D.2d 894 (N.Y. App. Div. 1971)
Case details for

Seneca Trucking Co., Inc. v. D.H. Overmeyer

Case Details

Full title:SENECA TRUCKING CO., INC., Respondent, v. D.H. OVERMEYER CO., INC., et…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Apr 1, 1971

Citations

36 A.D.2d 894 (N.Y. App. Div. 1971)

Citing Cases

Two Clinton Square Corp. v. Gorin Stores

The counterclaim is unrelated to the facts of plaintiff's claim but, instead, is based upon the same ground…

Sunrise Associates v. Pilot Realty Co.

The fourth cause of action seeking damages for breach of contract, while admittedly less than artfully…