Opinion
December 8, 1986
Appeal from the Supreme Court, Nassau County (McGinity, J.).
Ordered that the order is affirmed, with costs; and it is further,
Ordered that the plaintiffs' time to serve a complaint is extended until 20 days after the service upon them of a copy of this decision and order, with notice of entry, and the defendants shall serve their answer within 20 days after service of the complaint.
The plaintiffs were not holders in due course. Consequently, the defendants' counterclaim, alleging failure of consideration and lack of mutuality because all disputes and questions under the agreements were to be determined by the plaintiffs, presented a viable claim which arose from the underlying transaction. This claim is inseparable from the plaintiffs' cause of action. Under these circumstances, summary judgment was properly denied (see, Torres Leonard v. Select Professional Realties, 118 A.D.2d 467; Beninati v. Hanley, 95 A.D.2d 816; Ssangyong [U.S.A.] Inc. v. Sung Ae Yoo, 88 A.D.2d 572; Dorman v Cohen, 66 A.D.2d 411; Chisholm Ryder Co. v. Munro Games, 58 A.D.2d 972; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3213:17, p 843). Niehoff, J.P., Rubin, Eiber and Kunzeman, JJ., concur.