There are procedural rules peculiar to counterclaims in the New York State Supreme Court.

Counterclaims are typically served by the defendants upon plaintiffs with the defendants’ answers.  But they may, at the option of the pleader, be instead served as a stand-alone document.   The subject matter of a counterclaim need not relate to the transactions or occurrences alleged by the plaintiff in the main complaint (CPLR § 3019[a]).  If a counterclaim’s unrelatedness may complicate a trier of fact’s assessment of the case, it may be severed from the plaintiff’s action (Herskovitz v. Klein, 91 A.D.3d 598 [N.Y. App. Div., 2d Dep’t 2012]).  The allegations in a counterclaim must meet the same notice pleading requirements as those which govern complaints generally; namely, statements which are sufficiently particular to give the court and the parties notice of the transaction, occurrence, or series of transactions or occurrences intended to be proved, and the elements of each cause of action (CPLR § 3013; Taxi Tours, Inc. v. Go New York Tours, Inc., 41 N.Y.3d 991 [2024]).  Under Section 3011 of New York Civil Procedure Law and Rules (“CPLR”), a counterclaim must be “denominated as such,” meaning that the pleading clearly asserts the counterclaim separate from the paragraph-by-paragraph answer and its attendant affirmative defenses.   

By its nature, a counterclaim is reactive.  The plaintiff commences an action first.  The defendant, who may or may not have planned on asserting any claim against the plaintiff, then chooses to do so because the plaintiff commenced the primary action.  

What if the plaintiff commences an action within the applicable statute of limitations, but by the time the defendant is joining issue, the limitations period has expired on the potential counterclaim?  May the counterclaim be interposed?  Section 203(d) of the CPLR provides an answer, based on two scenarios.  For statute of limitations purposes, a counterclaim relates back to the date the plaintiff’s claims were interposed (i.e., the date the action was commenced).  Therefore, under one scenario, if the counterclaim becomes untimely between the date of the action’s commencement and the date of the counterclaim itself, it is treated as timely since it would have been timely as of the date of the action’s commencement.  The second scenario exists when the statute of limitations expired for the counterclaim before the plaintiff commenced the initial action on the plaintiff’s cause of action.  In that instance, the counterclaim is still allowed despite its untimeliness, but only if the counterclaim arises from the same transactions or occurrences which form the basis of the plaintiff’s complaint, and with the further restriction that damages on the counterclaim be capped at whatever money is demanded in the plaintiff’s complaint (Getzel Schiff & Pesce, LLP v. Shtayner, 233 A.D.3d 758 [N.Y. App. Div., 2d Dep’t 2024]; Bloomfield v. Bloomfield, 97 N.Y.2d 188 [2001]).  In other words, damages on the counterclaim are a mere offset against the plaintiff’s damages, with the defendant prohibited from obtaining an affirmative net recovery.  The theory behind that “equitable recoupment rule” is to protect the defendant from where the plaintiff deliberately postpones a lawsuit to beyond the defendant’s statute of limitations, to sucker punch the defendant into not asserting a timely claim at all.  Moreover, just as complaints in actions for personal injury and wrongful death shall contain a prayer for only general relief without stating the specific monetary damages to which the plaintiff claims entitlement, the same rule applies to counterclaims (and also for that matter to cross-claims, interpleader complaints, and third party complaints) (CPLR § 3017[c]).  Where an “untimely” counterclaim is permitted to the limited extent of off-setting the plaintiff’s award of damages, the defendant should serve upon the plaintiff a specific total damages demand, as permitted by Section 3017(c) of the CPLR, to assess the extent of damages which the counterclaiming defendant will need to prove to potentially zero-out the plaintiff’s recovery.

A counterclaim may be amended once as of right within the time limits of Rule 3025(a) of the CPLR.  If that occurs, and for statute of limitations purposes, the amendment relates back to the time of the original counterclaim, which then further relates back to the date of the plaintiff’s complaint (CPLR § 203[f]; Iacovangelo v. Shepard, 5 N.Y.3d 184 [2005]).

Rule 13(a) of the Federal Rules of Civil Procedure provides that in federal courts, a defendant’s failure to interpose a counterclaim that would have related to the subject matter of the plaintiff’s complaint constitutes a waiver of the defendant’s claim.  The federal “compulsory counterclaim rule” is not the rule in state practice.  But if there is a federal action where the related counterclaim is not interposed, followed by a state action for the federally “waived” claim, the state claim under those unique circumstances is waived as well by application of res judicata (Paramount Pictures Corp. v. Allianz Risk Transfer AG, 31 N.Y.3d 64 [2018]).

The plaintiff must interpose a reply to any counterclaim (CPLR § 3011).  The reply is to be served within twenty (20) days of the service of the counterclaim (CPLR § 3020[a]), which is not extended for e-filed cases under NYSCEF (Uniform Rule 202.5-b[f][2][ii], 202.5-c[c][1]) but which receives a five-day mailing extension for cases outside of NYSCEF (CPLR 2103[b][2]).  The reply may not only respond to the counterclaim’s allegations but also set forth any applicable affirmative defenses as with any responsive pleading.  Instead of a reply, the plaintiff may of course move to dismiss the defendant’s counterclaim under Rule 3211 of the CPLR.  A plaintiff who fails to either timely reply to a counterclaim or move to dismiss it is in default (Rajaram v. Singh, 230 A.D.3d 809 [N.Y. App. Div., 2d Dep’t 2024]).  If the plaintiff defaults on a counterclaim, the defendant must take proceedings for a judgment within a year from when the reply was due as required by Section 3215(c) of the CPLR, otherwise the counterclaim shall be dismissed as abandoned absent good cause shown (e.g., Doe v. Garfinkel, 234 A.D.3d 929 [N.Y. App. Div., 2d Dep’t 2025]).  This is true even though the language of Section 3215(c) of the CPLR speaks only to the dismissal of “complaint[s]” (Clemente v. Clemente, 16 Misc.3d 769 (Sup. Ct. Bronx Co. 2007] [Globerman, J.]).  Logically, the plaintiff’s reply cannot assert its own circular counterclaim against the defendant (DeMille v. DeMille, 5 Misc.3d 355 [Sup. Ct. Nassau Co. 2004] [Falanga, J.]).  If the plaintiff has any additional claims to assert at that point, it may be accomplished by amending the plaintiff’s original complaint within the available timeframe of Rule 3025(a) of the CPLR as of right, or by later leave of court under Rule 3025(b).  

The plaintiff may move for summary judgment after the defendant’s answer, but the defendant may not move for summary judgment on its counterclaim until after the plaintiff’s reply (CPLR 3212[a]; 68 North 8 Street HDFC v. Suarez, 18 A.D.3d 732 [N.Y. App. Div., 2d Dep’t 2005]). 

If the defendant wishes to assert a counterclaim against the plaintiff and a non-party that may be liable on the same claim, the defendant may do so under Section 3019(a) of the CPLR.  The defendant must file both a summons and the answer containing the counterclaim and then serve the summons with the other papers upon the non-party to obtain personal jurisdiction over it (CPLR § 3019[d]).  The non-party --- now a defendant in the caption --- serves a responsive pleading also known as a “reply” since it is responsive to a pleading denominated as a counterclaim (Id.). 

Hon. Mark C. Dillon is a Justice of the Appellate Division, Second Department, an Adjunct Professor of New York Practice at Fordham Law School, and a contributing author of CPLR Practice Commentaries in McKinney’s.