Citibank, N. A. v. Halajen Mineral Development Corp. , 412 N.Y.S.2d 19 ( 1979 )

— Order, Supreme Court, New York County, entered September 8, 1978, denying the plaintiffs motion for summary judgment made on the ground that defendant’s defense and counterclaim failed to state a valid defense or a cause of action, unanimously reversed, on the law, with $75 costs and disbursements of this appeal to the appellant, and the motion granted. Defendant acted as operating manager on behalf of a limited partnership known as Adelphi, whose purpose was to set up a tax shelter in the coal business. Plaintiff served as an escrow agent to hold the investment proceeds until the figure of $1,450,000 was reached, which had to be not later than a certain date. On that date, the fund was short $347,500. In order to trigger the release of the funds, the president of the defendant negotiated with the plaintiff a loan in that amount, a promissory note being signed on behalf of the defendant by its president. There is no record of the loan being repaid, nor does the defendant have a release of any kind. However, it contends that when it withdrew the investment proceeds, it left in the account the amount of the loan. We find insufficient substantiation for the affirmative defense of payment, and inasmuch as the counterclaim is for interest allegedly improperly paid on the loan, making it part of the same transaction for which we find the defendant indebted to the plaintiff, summary judgment is warranted. Settle order. Concur — Kupferman, J. P., Birns, Lane and Markewich, JJ.