Matas v. Alpargatas S.A.I.C.

274 A.D.2d 327, 711 N.Y.S.2d 178, 2000 N.Y. App. Div. LEXIS 7751

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 2000
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Charles Ramos, J.), entered September 21, 1999, which granted plaintiffs summary judgment in lieu of complaint in the amount of $1,767,133 plus interest, unanimously reversed, on the law, without costs, the motion denied and the judgment vacated. Plaintiffs are directed to serve a complaint within 20 days of the date of service of a copy of this order with notice of entry.

CPLR 3213 provides an accelerated procedure for commencement and pursuit of an action where a right to payment can be ascertained from the face of a document, without regard to extrinsic evidence. To establish a prima facie case, plaintiff must present an “instrument[ ] for the payment of money only” and evidence of a failure to make the payment called for by its terms (Interman Indus. Prods. v R. S. M. Electron Power, 37 NY2d 151, 155 [action did not qualify for accelerated treatment" absent written instrument by which defendant was obligated to make payment]).

Through Merrill Lynch, plaintiffs purchased “custodial receipts” representing a beneficial interest of $1,440,000 in a portion of the 9% convertible bonds of defendant Alpargatas S.A.I.C. However, the certificates of ownership of these “custodial receipts” were not subscribed by Alpargatas S.A.I.C., and thus did not evince that plaintiffs were registered holders of any of the securities issued by defendant. Prior to instituting this suit, plaintiffs sought to obtain definitive securities representing their interests by exchanging their custodial receipts for the actual bond certificates, which they admit that they never received from defendant. It cannot be ascertained from the face of these documents, without regard to extrinsic evidence, that plaintiffs have a right to repayment and, accordingly, they do not possess an “instrument for the payment of money only”. Thus, this action is not eligible for CPLR 3213 treatment. Concur — Rosenberger, J. P., Nardelli, Mazzarelli, Lerner and Friedman, JJ.