CPLR § 3213 Motion for summary judgment in lieu of complaint
Bloom v Lugli, 2011 NY Slip Op 00635 (App. Div., 2nd 2011)
Pursuant to CPLR 3213, a party may bring a motion in lieu of complaint when the action is "based upon an instrument for the payment of money only or upon any judgment." If an instrument contains an unconditional promise to pay a sum certain over a stated period of time, it is considered an instrument for the payment of money only (see Comforce Telecom, Inc. v Spears Holdings Co., Inc., 42 AD3d 557; Gregorio v Gregorio, 234 AD2d 512).
"The instrument does not qualify if outside proof is needed, other than simple proof of nonpayment or a similar de minimis deviation from the face of the document" (Weissman v Sinorm Deli, 88 NY2d 437, 444; see Ro & Ke, Inc. v Stevens, 61 AD3d 953; Stallone v Rostek, 27 AD3d 449). The test as to when a document qualifies as an instrument for the payment of money only under CPLR 3213 is as follows:
"Where the instrument requires something in addition to defendant's explicit promise to pay a sum of money, CPLR 3213 is unavailable. Put another way, a document comes within CPLR 3213 if a prima facie case would be made out by the instrument and a failure to make the payments called for by its terms.'"
(Weissman v Sinorm Deli, 88 NY2d at 444 [citations omitted]; see Stallone v Rostek, 27 AD3d 449, 450; Larkfield Manor v KBK Enters., 5 AD3d 444, 444-445; Eisenberg v HSBC Payment Serv. (USA), 307 AD2d 950, 951).
Here, the plaintiff failed to establish that the subject agreement was an instrument for the payment of money only. The terms of the sale of the plaintiff's interest in the joint venture to the defendants was subject to the continuation by the plaintiff of his legal representation of the defendants and the joint venture. Therefore, outside proof would be required to determine if the plaintiff satisfied his obligations pursuant to the agreement (see Ippolito v Family Medicine of Tarrytown & Ossining, LLP, 46 AD3d 752, 753).
The Supreme Court failed to interpret the agreement as drafted and improperly severed the plaintiff's obligation to continue providing legal representation from the remainder of the agreement. Having done so, the Supreme Court erred in granting judgment in favor of the plaintiff on his motion brought pursuant to CPLR 3213 (see Ippolito v Family Medicine of Tarrytown & Ossining, LLP, 46 AD3d 752; Stallone v Rostek, 27 AD3d 449).
The bold is mine
bruteforcelawyer.com 