Big K Kosher Dairy Restaurant, Inc. v. Gross

198 A.D.2d 205, 603 N.Y.S.2d 495, 1993 N.Y. App. Div. LEXIS 10184

Opinion

—In an action, inter alia, to recover rents due under a lease, the defendants appeal from an order of the Supreme Court, Kings County (Huttner, J.), dated October 1, 1991, which granted the plaintiff’s motion for summary judgment in its favor.

Ordered that the order is affirmed, with costs.

It is true that "[a] lease is not an instrument for the payment of money only within the contemplation of CPLR 3213” (see, Midda Realty Corp. v Ci-Tex, Inc., 50 AD2d 600), and accordingly, the instant action should not have been brought pursuant to that statutory provision. However, the defendants were served with a complaint, interposed their answer, and served papers in opposition to the motion for summary judgment pursuant to CPLR 3213. Thus, it was proper for the court to convert the CPLR 3213 motion into one for summary judgment pursuant to CPLR 3212 (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3213:ll, at 509). We further conclude that, since the plaintiff demonstrated its entitlement to judgment as a matter of law, and the defendants raised no triable issues of fact with regard to their claimed defenses, the Supreme Court did not err in granting the motion (see, CPLR 3212 [b]). Mangano, P. J., Rosenblatt, Lawrence, Copertino and Joy, JJ., concur.