Hunting Supply Corporation, Respondent, v. Austin M. Febrey, Appellant, 22 A.D.2d 1010

Order unanimously reversed, without costs of this appeal to either party, and motion denied, without costs, and without prejudice to the right of the defendant to move to dismiss for failure to prosecute. Memorandum: There are questions of fact which require determination. Therefore it was error to grant

summary judgment. It is significant that the defendant has interposed a counterclaim for an amount in excess of the plaintiff’s claim to which there is no reply. Thus the allegations of the counterclaim are deemed admitted. Where there is a legally sufficient counterclaim for an amount in excess of the amount demanded in the complaint the plaintiff’s motion for

summary judgment must be denied. (Illinois McGraw Elec. Co. v. John J. Walters Inc., 7 N Y 2d 874; Treacy v. Melrose Paper Stock Co., 269 N. Y. 155; Hellmuth v. Brandin, 3 A D 2d 997.) Special Term quite properly treated the papers of the defendant in opposition to the motion not as a cross motion to dismiss the complaint for failure to prosecute but rather as a defense of laches to the motion itself. The conclusion herein reached is without prejudice to the defendant to move to dismiss the complaint for failure to prosecute upon proper papers if so advised. (Appeal from an order of Jefferson Special Term granting plaintiff’s motion for

summary judgment.) Present — Williams, P. J., Goldman, Henry, Noonan and Del Vecchio, JJ.