European American Bank & Trust Co. v. Schirripa

108 A.D.2d 684

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 1985
• Status: Published

Opinion

Order of the Supreme Court, New York County (Alfred M. Ascione, J.), entered on April 16, 1984, which denied plaintiff’s motion pursuant to CPLR 3213 for summary judgment in lieu of complaint, is unanimously reversed, on the law, and summary judgment granted to plaintiff, with costs and disbursements.

It is well established that an unconditional guarantee such as the one involved here is an instrument for the payment of money only within the meaning of CPLR 3213. (Manufacturers Hanover Trust Co. v Green, 95 AD2d 737, appeal dismissed 61 NY2d 760.) Consequently, plaintiff’s failure to attach copies of the underlying obligations, consisting of several promissory notes, was not fatal to plaintiff’s motion for summary judgment in lieu of complaint. In that regard, it was sufficient for plaintiff to submit the instrument sued upon along with the affidavit of nonpayment. (See, Kornfeld v NRX Technologies, 93 AD2d 772, affd 62 NY2d 686; Council Commerce Corp. v Paschalides, 92 AD 2d 579.) Moreover, defendant does not dispute the clear documentary evidence. The unsupported allegations contained in his affidavit in opposition certainly do not raise any defenses such as can defeat the motion for summary judgment. Concur — Kupferman, J. P., Carro, Fein and Milonas, JJ.