Associated Capital Services Corp. of New Jersey v. Lichtenstein

94 A.D.2d 736, 462 N.Y.S.2d 484, 1983 N.Y. App. Div. LEXIS 18180

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 16, 1983
• Status: Published

Opinion

— In an action allegedly based upon an instrument for the payment of money only, commenced by service of a summons and notice of motion for summary judgment in lieu of a complaint, defendants Kaufman and Brill appeal, (1) as limited by their brief, from so much of an .order of the Supreme Court, Kings County (Feldman, J.) dated September 17, 1982, as granted summary judgment against them, and (2) from a further order of the same court, dated July 31, 1982, which denied their motion for reargument of the decision granting summary judgment. Appeal from order dated July 31,1982 dismissed, without costs or disbursements. An order denying reargument of a decision is not appealable. Order dated September 17, 1982 reversed, insofar as appealed from, without costs or disbursements, and the plaintiff’s motion for summary judgment as against defendants Kaufman and Brill is denied. Plaintiff sued upon a guarantee of “the prompt and complete performance * * * of all the covenants and conditions” which were to be performed under an agreement for the lease of communications equipment. The instrument at bar goes beyond merely guaranteeing the payment of money and, as such, is not an instrument for the payment of money only within the ambit of CPLR 3213 so as to permit institution of this action by means of service of a summons with a motion for summary judgment in lieu of complaint (see Interman Ind. Prods, v R.S.M. Electron Power, 37 NY2d 151; Haug v Metal City Findings Corp., 47 AD2d 837; Times Sq. Assoc. v Grayson, 39 AD2d 845). Gulotta, J. P., O’Connor, Bracken and Brown, JJ., concur.