Defendant was president of MBP and reportedly responsible for MBP's bankruptcy reorganization plans, but asserts that he acted in close coordination with Greenspan in such regard. Congress had the sole class 1 claim under the reorganization plan, and the plan was contingent on MBP obtaining financing to pay its entire debt to Congress. Defendant states that in 2003, he authorized Congress to keep his $3,686,000 personal cash collateral as part of paying the debt to Congress and that, if he had not done so, the reorganization plan would not have succeeded. In June 2009, real estate sales by MBP generated $3,130,000, which resulted in sufficient funds to cover the class 9 claims. However, according to defendant, he spoke with Greenspan (and others who had a financial interest in MBP) and, because defendant had personally paid $3,686,000 of the Congress debt, Greenspan consented to a discount to $1,001,600 of the $1,728,000 due to him for personally paying the tax obligation. Greenspan was paid $1,001,600 in payments made in July and August 2009.
Nearly three years later, in June 2012, Greenspan commenced this action (Greenspan Partnership was later added by amended complaint) seeking the difference between his class 9 claim ($1,728,000) and the amount actually received
We are unpersuaded by defendant's argument that his counterclaim is preserved by CPLR 203 (d). Under that statute, "claims and defenses that arise out of the same transaction [or series of transactions] as a claim asserted in the complaint are not barred by the [s]tatute of [l]imitations, even though an independent action by defendant might have been time-barred at the time the action was commenced" (Bloomfield v Bloomfield, 97 N.Y.2d 188, 193 ). A counterclaim preserved by the statute acts "as a shield for recoupment purposes, and does not permit the defendant to obtain affirmative relief" (Carlson v Zimmerman, 63 A.D.3d 772, 774  [internal quotation marks and citation omitted]). Application of the statute "require[s] a tight nexus between claim and counterclaim" (Estate of Mantle v Rothgeb, 537 F.Supp.2d 533, 544 [SD NY 2008] [internal quotation marks and citation omitted]; see Matter of SCM Corp. [Fisher Park Lane Co.], 40 N.Y.2d 788, 791-792 ; Murray v Farrell, 97 A.D.3d 953, 956 ; Messinger v Mount Sinai Med. Ctr., 279 A.D.2d 344, 345 ; Haller v 360 Riverside Owners Corp., 273 A.D.2d 52, 52-53 ). The debt to Congress and the tax liability debt were two separate transactions that were incurred several years apart and were not intertwined or related. The fact that both debts became relevant in the bankruptcy proceeding is not enough to bring the separate obligations within the scope of CPLR 203 (d) for litigation outside the bankruptcy. Even within the bankruptcy, the tax debt paid by Greenspan was established as an individual claim by Greenspan, whereas defendant's payment to Congress did not result in an established individual claim by defendant. The transactions are too attenuated to invoke CPLR 203 (d).
Defendant did, however, assert sufficient factual issues as to waiver and estoppel (see Won's Cards v Samsondale/Haverstraw Equities, 165 A.D.2d 157, 163-164 ; cf. Inter-Power
Ordered that the order is reversed, on the law, with costs, and motion denied.