Plaintiff, New York Merchants Protective Company moves pursuant to CPLR 3211(a)(6) to dismiss defendant's counterclaim because the contract between the parties prohibits same. The issue pending before this Court is whether the counterclaim survives the contractual waiver, because the allegations support a fraud claim or whether the allegations only support a contract claim, and thus can be waived.

Plaintiff alleges that the parties executed a contract, dated April 4, 2002, "whereby plaintiff agreed to lease, service, and monitor an alarm system for defendant for a period of five years" (paragraph 4 of the complaint).

Plaintiff alleges that defendant breached the contract by failing to pay amounts owed. Thus, plaintiff seeks recovery of the amounts owed, plus attorney fees.

Defendant has asserted the following counterclaim in its answer: [*2]

12. On or about April 4, 2002, plaintiff, through its agents, servants and/or employees visited the home of defendant. During that visit, they made numerous representations concerning the quality and promptness of the security services provided by plaintiff's organization. Those representations included the ability to promptly and timely maintain and repair plaintiff's security system, and keep it in full functioning condition at all times.

13. As a result of the affirmative representations made by plaintiff and its agents and/or employees on April 4, 2002, defendant agreed to enlist the services of plaintiff to monitor and maintain her security system at the residence. As part of that agreement, she tendered to the plaintiff and its agents and/or employees, her check in the amount of $56.50 representing the first quarterly charge, covering the period April, May and June of 2002.

14. During the period between April and June 2002, several calls were placed to plaintiff to obtain service on the alarm system and to keep it in functioning form. Those requests for service were met with delay and otherwise nonresponsive conduct. As a direct result thereof, in June, 2002, plaintiff telephoned the defendant, advising that it was canceling the contract. The plaintiff's employees said they would take care of the paperwork. When further bills were received, defendant again telephoned and subsequently wrote on two separate occasions demanding that the contract be terminated and that the bills would not be paid.

15. During discussions with plaintiff in December, 2003, plaintiff's employees suggested that the matter could be resolved for payment of $100, a payment which was made on December 30, 2003 by the defendant.

16. Despite the plaintiff's assurance that the matter was resolved, the plaintiff has maliciously filed litigation against the defendant seeking $1,053.93 plus $319.00 in attorney's fees, none of which is supported by the charges referenced in the agreement, even if it were still in force and effect.

17. The defendant seeks of the plaintiff, return of its $156.50 it paid to the plaintiff in connection with the contract and its termination; punitive and treble damages based upon plaintiff's malicious prosecution of a frivolous litigation in the amount of $3,150; and attorney's fees at a rate and amount to be determined by the Court.

The April 4, 2002 agreement provides in paragraph 12, entitled "LEGAL ACTION" that,

"In any action commenced by NYMP against Lessee, Lessee shall not be permitted to interpose any counterclaim."

Plaintiff contends that the above clause bars defendant from asserting the counterclaim. Defendant counters that the waiver of counterclaim is not applicable because the contract was "formed by virtue of the fraudulent representations of the plaintiff, its agents, servants and/or employees . . . " see paragraph 3 of defendant's affirmation in opposition, dated 7/28/04.

Contractual waivers of counterclaims or setoffs are valid and enforceable in New York. See, Federal Deposit Ins. Corp. v. Frank L. Marino Corp., 74 AD2d 620, 425 N.Y.S.2d 34 (2nd Dep't 1980); Sterling Nat. Bank & Trust Co. of New York v. Giannetti, 53 AD2d 533, 384 N.Y.S.2d 176 (1st Dep't 1976). This rule is not applicable to counterclaims based upon fraud. See, Federal Deposit, supra. and Sterling Nat. Bank, supra. Also supporting this principle of law is Federal Deposit Insurance Corp. v. Borne, 599 F. Supp. 891 (U.S. Dist. Ct., Eastern Dist. 1984).

The issue before this Court is whether the allegations of the counterclaim constitute fraud or are merely allegations supporting a breach of contract action. Based upon a review of the allegations, the Court concludes that the allegations support a breach of contract action, and not a fraud action. The allegations in the counterclaims allege representations concerning the defendant's "quality and promptness" of its security services to be performed in the future. These allegations are contract based and do not support a viable independent tort claim of fraud. See, Briefstein v. P.J. Rotondo Constr. Co., 8 AD2d 349 (1st Dept. 1959); Metropolitan Life Ins. Co. v. Noble Lowndes Int'l Inc., 84 NY2d 430; Meehan v. Meehan, 227 AD2d 268 (1st Dept. 1996); Kotick v. Desai, 123 AD2d 744 (2nd Dept. 1986); see also, generally, "When Contract Claims and Fraud Claims Intersect," N.J.L.J. 1, 9/17/99 (col. 1); and Ross v. DeLorenzo, N.J.L.J., 10/22/04, p. 23, col. 3 (Sup. Ct., Suff. Ct., Justice Burke).

The plaintiff's motion to dismiss the defendant's counterclaim is granted based upon the waiver in the contract. However, defendant may assert her allegations as defenses. See, Sterling Nat., supra.

So ordered:

DISTRICT COURT JUDGE
Dated: November 5, 2004

CC:Kirschenbaum & Kirschenbaum, P.C.

DeOrchis & Partners, LLP

SF/mp