Ljungberg v. Marino

239 A.D.2d 952, 661 N.Y.S.2d 813, 1997 N.Y. App. Div. LEXIS 6391

Opinion

Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied plaintiff s motion for summary judgment in lieu of complaint pursuant to CPLR 3213 on the ground that the action is not based upon an instrument for the payment of money only. The documentary evidence submitted by plaintiff "fails to recite any agreement by the parties on several vital terms” (Mesaba Serv. & Supply Co. v Freedman & Son, 111 AD2d 985, 986; see, Weissman v Sinorm Deli, 88 NY2d 437). Because "proof beyond the written instrument is necessary to substantiate the underlying obligation, resort to CPLR 3213 was inappropriate” (Mesaba Serv. & Supply Co. v Freedman & Son, supra, at 986). (Appeal from Order of Supreme Court, Erie County, Rath, Jr., J.—Summary judgment.) Present—Pine, J. P., Lawton, Callahan, Boehm and Fallon, JJ.