Opinion
2005-296 Q C.
Decided December 12, 2005.
Appeal from an order of the Civil Court of the City of New York, Queens County (Augustus C. Agate, J.), entered November 4, 2004. The order denied plaintiff's motion for summary judgment dismissing defendant's counterclaims.
Order unanimously affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and BELEN, JJ.
Plaintiff commenced the instant action to recover for unpaid medical services and defendant counterclaimed for medical malpractice. Thereafter, plaintiff moved for summary judgment to dismiss defendant's counterclaim as time-barred since it was interposed more than two and one-half years after the last date of treatment ( see CPLR 214-a). "The doctrine of equitable recoupment, as codified in CPLR 203(d) . . . permits a defendant to revive [a] . . . counterclaim that which would ordinarily be time barred. [In order] for the doctrine to apply, the defendant's counterclaim . . . must arise out of the same transaction or series of transactions that form the basis of, and must be sufficiently related to, the causes of action alleged in the plaintiff's complaint ( see, Matter of SCM Corp. [Fisher Park Lane Co.], 40 NY2d 788, 791)" ( 182 Franklin St. Holding Corp. v. Franklin Pierrepont Assocs., 217 AD2d 508, 509). We find that defendant's counterclaim arose out of the same transaction upon which the complaint is based and, therefore, was not barred to the extent of the demand asserted in the complaint (CPLR 203 [d]). Accordingly, the lower court properly denied plaintiff's motion for summary judgment dismissing defendant's counterclaim.