Cmaylo v. Geichman

Appellate Division of the Supreme Court of New York

Cmaylo v. Geichman

175 A.D.2d 150, 573 N.Y.S.2d 897, 1991 N.Y. App. Div. LEXIS 10038

Appellate Division of the Supreme Court of the State of New York·Decided July 8, 1991·Published·Cited by 1 cases

Opinion

— In an action to recover moneys due under a written agreement between the parties, the defendants appeal from an order of the Supreme Court, Nassau County (Kutner, J.), dated January 12, 1990, which, inter alia, granted the plaintiff’s motion, pursuant to CPLR 3213, for summary judgment in lieu of complaint.

Ordered that the order is affirmed, with costs.

The defendants’ claim that the agreement sued upon is not an instrument for the payment of money only pursuant to CPLR 3213 is not preserved for appellate review since it was not raised in the Supreme Court (see, Abacus Real Estate Fin. Co. v P.A.R. Constr. & Maintenance Corp., 115 AD2d 576, 577). In any event, the agreement, which provided for the unconditional payment of specified sums over a stated time period, did qualify for summary judgment treatment pursuant to CPLR [151]*1513213 (see, Gittleson v Dempster, 148 AD2d 578, 579; Seaman Andwall Corp. v Wright Mach. Corp., 31 AD2d 136, 137, affd 29 NY2d 617).

The defendants’ contentions with regard to their alleged defenses of lack of consideration, duress and fraudulent misrepresentations, which were not supported by specific factual details, were insufficient to justify the denial of the plaintiffs motion. Lawrence, J. P., Eiber, Balletta and Ritter, JJ., concur.

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— In an action to recover moneys due under a written agreement between the parties, the defendants appeal from an order of the Supreme Court, Nassau County (Kutner, J.), dated January 12, 1990, which, inter alia, granted the plaintiff’s motion, pursuant to CPLR 3213, for summary judgment in lieu of complaint.

Ordered that the order is affirmed, with costs.

The defendants’ claim that the agreement sued upon is not an instrument for the payment of money only pursuant to CPLR 3213 is not preserved for appellate review since it was not raised in the Supreme Court (see, Abacus Real Estate Fin. Co. v P.A.R. Constr. & Maintenance Corp., 115 AD2d 576, 577). In any event, the agreement, which provided for the unconditional payment of specified sums over a stated time period, did qualify for summary judgment treatment pursuant to CPLR [151]*1513213 (see, Gittleson v Dempster, 148 AD2d 578, 579; Seaman Andwall Corp. v Wright Mach. Corp., 31 AD2d 136, 137, affd 29 NY2d 617).

The defendants’ contentions with regard to their alleged defenses of lack of consideration, duress and fraudulent misrepresentations, which were not supported by specific factual details, were insufficient to justify the denial of the plaintiffs motion. Lawrence, J. P., Eiber, Balletta and Ritter, JJ., concur.

Cmaylo v. Geichman, 175 A.D.2d 150, 573 N.Y.S.2d 897, 1991 N.Y. App. Div. LEXIS 10038 (N.Y. Ct. App. 1991).

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Opinion

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