Upon the following papers read on Plaintiffs Motion seeking summary judgment in lieu of complaint: MEMORANDUM DECISION

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1 IndexNo: 5401/00 SUPREME COURT - STATE OF NEW YORK I.A.S. PART 28 - NASSAU COUNTY PRESENT: HON. LEONARD B. AUSTIN Justice of the Supreme Court Motion R/D: 6/22/00 Submission Date: 6/22/00 Motion Sequence No.: OOl/MOT D MARVIN EISENPRESSER and ROBERT EISENPRESSER, Plaintiffs, Attornev for Plaintiffs Michael M. Premisler, Esq. One Old Country Road Carle Place, New York against- NATIONAL DIE AND BUTTON MOULD CO., INC. Defendant. Attorney for Defendants Patterson, Belknap, Webb & Tyler, LLP 1133 Avenue of the Americas New York, New York Upon the following papers read on Plaintiffs Motion seeking summary judgment in lieu of complaint: Plaintiffs Notice of Motion; Affidavit of Marvin Eisenpresser; Affirmation of Michael M. Premisler, Esq. and supporting papers; Defendant s Memorandum of Law; Affidavit of Louis Eisenpresser and supporting papers; Reply Memorandum of Michael M. Premisler, Esq. MEMORANDUM DECISION National Die & Button Mould Co., Inc ( National ) is owned by Plaintiffs father, George Eisenpresser (33%), Plaintiffs (17%) and other family members (50 %). 1

2 EISENPRESSER V. NATIONAL DIE AND BUTTON MOULD, CO., INC. On or about April 29, 1997, and May 2, 1997, Plaintiff brothers loaned Defendant corporation a total of $1 OO,OOO.OO. The indebtedness was memorialized by notes numbered 010 and 013 dated May 2,1997. Each of those notes, in the face amount of $50, were silent as to payment terms except that interest was payable at 10% quarterly. Note number 013 was in favor of both Plaintiffs while the other note, under number 016 ran in favor of Plaintiff Marvin Eisenpresser only. In the absence of payment terms, the notes were payable on demand. UCC 3-108; and Nuri Farhadi, Inc. v. Anavian, 58 A.D. 2d 546,396 N.Y.S. 2d 26 (lst Dept. 1977). On May 4, 1998, Plaintiffs duly demanded payment on the notes. Thereafter, on May 20, 1998, Defendant by Louis Eisenpresser, President of Defendant acknowledged the loan and promised payment on anticipated financing a few weeks hence. Plaintiffs now seek payment on the notes at 10% interest from May 2, By motion for summary judgment in lieu of complaint pursuant to CPLR 3213, Plaintiffs seek an accelerated determination of their rights. Defendant opposes the motion, arguing that the case is far more complex than presented. Defendant maintains that the notes upon which Plaintiffs now sue are bound together with a much larger family dispute. That is, George Eisenpresser, who is not a party to this action and the father of Plaintiffs, has sued his sons in the Supreme Court, New York County. The father alleges, in that litigation, that his sons breached a 1990 Shareholders Agreement which governs insurance policies taken out on his life. 2

3 EISENF RESSER V. NATIONAL DIE AND BUTTON MOULD, CO., INC. In the action before this Court, Defendant further alleges, as a counterclaim, that Plaintiffs are indebted to National for the value of the life insurance premiums paid or approximately $442, It is noted, however, that in the New York action, George Eisenpresser is Plaintiff and Defendant herein, National Die & Button Mould Co., Inc., is not a party. Discussion An aggrieved party is permitted to seek an e)cpedited determination on a claim when it involves enforcement of an instrument for the payment of money only. CPLR See, lnterman Industrial Prod. Ltd. v. R.S.M. Electron Power, Inc., 37 N.Y.2d 151,371 N.Y.S.2d 675 (1975); and Nasti Sand Co. v. Alman Landscaoino Cot-o., 34 A.D.2d 554,309 N.Y.S.2d 697 (2nd Dept. 1970) (Summary judgment was denied where the agreement also provided for the delivery of snow removal equipment). Only where the instrument is clear and unambiguous that it is the payment of money only can summary judgment be granted. Seaman-Andwall Cot-o. v. Wrioht Machine Corp., 31 A.D.2d 136,295 N.Y.S.2d 752 (lst Dept. 1968), affcf., 29 N.Y.2d 617,324 N.Y.S.2d 410 (1971). See also, Gittleson v. Demoster, 148 A.D.2d 578, 539 N.Y.S.2d 46 (2nd Dept.), Iv. app. den., 74 N.Y.2d 603,542 N.Y.S.2d 518 (1989). Here, Defendant has demonstrated no defense to the notes except that Defendant is due an offset based upon the Shareholder Agreement and Plaintiffs, alleged failure to pay all premiums on a life insurance policy for their father who is the 3

4 EISENFXESSER V. NATIONAL DIE AND BUTTON MOULD, CO., l-nc. Index No. 54OllOO Plaintiff in the New York County action seeking the same relief. This Defendant s right to such relief is not a certainty. Defendant paid the premiums and now seeks reimbursement in its counterclaim. Defendant argues that its counterclaim is so intertwined with the issues in enforcement of the notes that summary judgment could not be granted. In support of that proposition, Defendant citeschisholm Rvder Co. v. Munro Games, Inc., 58 A.D. 2d 972,397 N.Y.S. 2d 253 (4: Dept. 1977), where the subject promissory note was in payment of rent for a premises wherein Defendant s goods were damaged by a leaky roof. Enforcement of the note was reversed since the counterclaim also arose from the landlord-tenant relationship. Here, no such identity of issues exists. Defendant is not a party to the shareholder agreement nor is George Eisenpresser, a party here. The counterclaim cannot stand as a bar to summary judgment when, as here, a different, non-party can properly asserts such claim. See, P. Balentine & Sons v. Boston Celtics Basketball Club, 36 A.D. 2d 914, 320 N.Y.S. 2d 876 (1 st Dept. 1971); and Ehrlich v. American Moniqer Greenhouse Manuf. Corp., 26 N.Y. 2d 255,309 N.Y.S. 2d 341 (1970). With the issue of the payment of the premiums being litigated in the Supreme Court, New York County by the apparently proper, and different, parties, it is appropriate to grant summary judgment here. It is undisputed that Plaintiffs made a loan to the defendant corporation, the loan is due and it has not been paid. It is 4

5 EISENPRJZSSER V. NATIONAL DIE AND BUTTON MOULD, CO., INC. appropriate to grant Plaintiffs their judgment on the notes at ten (10%) interest to the date of judgment. Plaintiffs shall be entitled to enter judgment against Defendant in.the amount of $50, together with interest, as set forth in note under 013, at the rate of 10% per annum from May 2, 1997 to the date of entry of the judgment and Plaintiff Marvin Eisenpresser shall be entitled to enter judgment against Defendant in the amount of $50, together with interest, as set forth in the note number 010, at the rate of 10% per annum from May 2, 1997 to the date of entry of the judgment. Plaintiffs shall be entitled to recover costs and disbursements as taxed by the Clerk of the Court. Settle judgment on ten (10) days notice. Dated: Mineola, New York August 18,200O 5