Associates Capital Services Corp. v. Lichtenstein

96 A.D.2d 1089, 467 N.Y.S.2d 52, 1983 N.Y. App. Div. LEXIS 19740

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 26, 1983
• Status: Published

Opinion

— In an action allegedly based upon an instrument for the payment of money only, commenced pursuant to CPLR 3213 by service of a summons and notice of motion for summary judgment in lieu of a complaint, defendant Abraham Lichtenstein appeals, as limited by his brief, (1) from so much of an order of the Supreme Court, Kings County (Feldman, J.), dated September 17, 1982, as granted summary judgment against him, and (2) from so much of a judgment of the same court, dated October 20, 1982, as awarded plaintiff judgment against appellant in the principal sum of $20,059.85. Appeal from the order dismissed, without costs or disbursements (see Matter of Aho, 39 NY2d 241, 248). Judgment reversed insofar as appealed from, on the law, without costs or disbursements, and plaintiff’s motion for summary judgment as against appellant is denied. Plaintiff sued upon a guarantee by appellant of all the covenants and conditions to be performed by Silent Trucking Corp. (of which appellant is a principal) under a lease. The guarantee is not “an instrument for the payment of money only” upon which an action by means of a motion for summary judgment in lieu of a complaint pursuant to CPLR 3213 may be commenced (see Associated Capital Seros. Corp. v Lichtenstein, 94 AD2d 736). Accordingly, relief pursuant to CPLR 3213 must be denied. Mollen, P. J., Mangano, Thompson and Niehoff, JJ., concur.