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Waiver of Counterclaim Enforced

 Waiver of Counterclaim Enforced

DISTRICT COURT OF NASSAU COUNTY
FIRST DISTRICT: CIVIL 1 PART :
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CONSUMERS ENERGY GROUP, INC.,
INDEX NO. 4191/02
Plaintiff,                                             Present: HON. JOEL K. ASARCH
- against -         
 
BOBBY REESE and MARY REESE,
    Defendants.

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The following named papers numbered 1 to 2 were submitted on this Notice of Motion on April 2, 2003:

Notice of Motion and Affirmation Annexed Affidavit in opposition

Papers numbered
         1-2 X


The plaintiff moves for an order dismissing the defendants' counterclaim.


This action was commenced on or about February 14,2002 by service of the summons and complaint upon the defendants. The complaint seeks damages based on the defendants' alleged breach of an oil delivery and service contract. The plaintiff seeks liquidated damages, increased oil prices for fuel delivered, four years of a sum certain for oil delivery, interest and attorneys' fees.


On or about February 28, 2002, the defendants answered the complaint, denying the central allegations  in the complaint, raising as an affirmative defense that the plaintiff breached the contract (not the  defendants) and interposing a counterclaim for damages, measured by the difference between the amount actually paid by the defendants for fuel oil as opposed to the amount they would have paid under the contract, but for the plaintiffs breach.


In this motion, the plaintiff seeks a dismissal of the counterclaim. The defendants have not opposed the motion. The agreement which the defendants signed provides that "[i]n any action commenced by [the plaintiff] against Buyer, Buyer shall not be permitted to interpose any counterclaim"

 [par. 13]. By the terms of the agreement, the defendants have waived their rights to interpose the counterclaim. "Such a waiver may be enforced and is not against public policy," Chemical Bank of New York Trust Co. v. Batter, 31 A.D.2d 802, 297 N. Y .S.2d 363 (151 Dept. 1969); North Fork Bank & Trust Co. v. Bernstein & Gershman, 201 A.D.2d 472,607 N.Y.S.2d 135 (rd Dept. 1994). Accordingly, the defendants' counterclaim is dismissed, without prejudice.


In light of the foregoing, the Court need not address the issue of arbitrability on any future potential claim by the defendants against the plaintiff.


This constitutes the decision and order of the court.