Banque Indosuez v. Trifinery

817 F.Supp. 386 (S.D.N.Y. 1993)

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Nature of the Case

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Facts

Trifinery (D) executed a promissory note to P. It was guaranteed by defendant Brass. Ds do not dispute that they are liable under the note but claim that summary judgment is improper in that they have a viable set-off claim which they have taken under a counterclaim in the present action. Ds contend they have paid P all that is due under the note except their valid set-off of $461,236.64. Ds contend that the entry of summary judgment is improper when the value of the counterclaim is uncertain. P contends that Ds have no right to assert a counterclaim as the terms of the note itself prohibit such actions. P contends that D waived the right to assert a counterclaim and that summary judgment is proper.