Berry v Batash 2026 NY Slip Op 01755 Decided on March 25, 2026 Appellate Division, Second Department deals with the question of whether certain claims, Judiciary Law 487 amoungst them, had to be brought as counterclaims, or could they be broght in a plenary action. While Urias v. Buttafuoco is not mentioned it looms large on the question of whether a JL 487 claim may be brought as a plenary action.

“In an action, inter alia, to recover damages for abuse of process, the plaintiff appeals from an order of the Supreme Court, Nassau County (Randy Sue Marber, J.), entered June 28, 2023. The order, insofar as appealed from, (1) denied, as academic, the plaintiff’s motion pursuant to CPLR 3211(b) to dismiss the affirmative defenses of the defendant Jon Batash and pursuant to CPLR 3211(a)(7) to dismiss that defendant’s counterclaim, (2) in effect, granted that branch of the cross-motion of the defendant Jon Batash which was for summary judgment dismissing the complaint insofar as asserted against him, and (3), in effect, granted that branch of the motion of the defendant Eran Regev which was pursuant to CPLR 3211(a) to dismiss the causes of action to recover damages for abuse of process, injurious falsehood, and intentional infliction of emotional distress insofar as asserted against him and the cause of action to recover damages for a violation of Judiciary Law § 487.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying, as academic, the plaintiff’s motion pursuant to CPLR 3211(b) to dismiss the affirmative defenses of the defendant Jon Batash and pursuant to CPLR 3211(a)(7) to dismiss that defendant’s counterclaim, (2) by deleting the provision there of, in effect, granting that branch of the cross-motion of the defendant Jon Batash which was for summary judgment dismissing the causes of action to recover damages for abuse of process, injurious falsehood, and intentional infliction of emotional distress insofar as asserted against him, and (3) by deleting the provision thereof, in effect, granting that branch of the motion of the defendant Eran Regev which was pursuant to CPLR 3211(a) to dismiss the causes of action to recover damages for abuse of process, injurious falsehood, and intentional infliction of emotional distress insofar as asserted against him and the cause of action to recover damages for a violation of Judiciary Law § 487; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith.”

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However, Berry correctly contends that the Supreme Court improperly, in effect, granted dismissal of the remaining causes of action on the ground that they could have been asserted as counterclaims in the prior action. New York is a permissive counterclaim jurisdiction under CPLR 3011 and 3019, where, generally, a defendant has no obligation to assert counterclaims and can wait to assert them in separate litigation (see Sweet Constructors, LLC v Wallkill Med. Dev., LLC, 106 AD3d 810; 67-25 Dartmouth St. Corp. v Syllman, 29 AD3d 888, 889). However, while “[o]ur permissive counterclaim rule may save from the bar of res judicata those claims for separate or different relief that could have been but were not interposed in the parties’ prior action,” the rule “does not . . . permit a party to remain silent in the first action and then bring a second one on the basis of a preexisting claim for relief that would impair the rights or interests established in the first action” (Henry Modell & Co. v Minister, Elders & Deacons of Ref. Prot. Dutch Church of City of N.Y., 68 NY2d 456, 462 n 2; see Wax v 716 Realty, LLC, 151 AD3d 902, 903; 67-25 Dartmouth St. Corp. v Syllman, 29 AD3d at 889-890).

Here, Berry’s failure to assert the remaining causes of action as counterclaims in the prior action did not preclude him from asserting them in this action because, if Berry were successful on those causes of action, this would not impair the rights that were or could be established in the prior action with respect to him (see Wax v 716 Realty, LLC, 151 AD3d at 903; 67-25 Dartmouth St. Corp. v Syllman, 29 AD3d at 889-890). Accordingly, the Supreme Court erred by, in effect, granting dismissal of those causes of action on the ground that they could have been raised as counterclaims in the prior action and by denying, as academic, Berry’s motion pursuant to CPLR 3211(b) to dismiss Batash’s affirmative defenses and pursuant to CPLR 3211(a)(7) to dismiss Batash’s counterclaim. Under the circumstances, we remit the matter to the Supreme Court, Nassau County, for consideration of the other grounds that Batash advanced in support of that branch of his cross-motion which was for summary judgment dismissing the abuse of process, injurious falsehood, and intentional infliction of emotional distress causes of action insofar as asserted against him and the other grounds that Regev advanced in support of that branch of his motion which was pursuant to CPLR 3211(a) to dismiss the abuse of process, injurious falsehood, and intentional infliction of emotional distress causes of action insofar as asserted against him and the cause of action alleging a violation of Judiciary Law § 487, and thereafter a new determination of that branch of Batash’s cross-motion and that branch of Regev’s motion, as well as Berry’s motion pursuant to CPLR 3211(b) to dismiss Batash’s affirmative defenses and pursuant to CPLR 3211(a)(7) to dismiss Batash’s counterclaim.”