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Nelson Bros. W. Seneca LLC v. Kaplan

Counterclaims Under Closing Note Are Untimely; No Setoff Available Against Guaranty

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The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 were read on this motion to DISMISS COUNTERCLAIMS. DECISION ORDER ON MOTION Plaintiffs-Counterclaim Defendants Nelson Brothers West Seneca, LLC and its affiliates (“Plaintiffs”) move (NYSCEF 11) to dismiss Defendants-Counterclaim Plaintiffs Wayne Kaplan and Robert Borsody’s (“Defendants”) counterclaims for (1) breach of contract and (2) attorney’s fees (“Counterclaims”). For the reasons that follow, the motion is GRANTED. BACKGROUND Plaintiffs’ Complaint (NYSCEF 1) concerns a Master Lease Agreement as amended (“Lease” [NYSCEF 2-3]) between Plaintiffs and non-party Eden Heights of West Seneca Operating, LLC (“Eden”). The Lease concerns 3030 Clinton Street, West Seneca, New York (“the Property”). The Complaint asserts a single cause of action against Defendants to recover on a guaranty (“Guaranty” [NYSCEF 5]) of the Lease. The Guaranty provides that it is “absolute and unconditional” and that “[t]o the fullest extent allowed by applicable law, Guarantors herby waive the benefit of all statutory protections or rights afforded to them under applicable law.” Defendants’ Answer (NYSCEF 10) was filed on July 11, 2022. Defendants assert Counterclaims for breach of a note dated April 15, 2009 (“Premier Closing Note” [NYSCEF 16]) and for attorney’s fees under both the Premier Closing Note and Lease. Defendants claim to own non-party Premier Senior Living, L.L.C. (“Premier”) which was offered, in 2009, the opportunity to purchase the Property but lacked the funds to do so (Answer

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