Stadler v. Lang Engraving Corp.

40 A.D.2d 795, 338 N.Y.S.2d 1, 1972 N.Y. App. Div. LEXIS 3332

Opinion

Order, Supreme Court, New York County, entered March 15, 1971, unanimously modified, on the law, so as to reverse and deny plaintiff’s motion for summary judgment, and the action remanded for service of pleadings in due course, without prejudice, however, to renewal of motion for summary judgment following joinder of issue and completion of pretrial procedures. Appellant shall recover of respondent $60 costs and disbursements of this appeal. We conclude that the action was not one brought upon an “instrument for -the payment of money only” within the meaning of CPLR 3213. (See Wagner v. Cornblum, 36 A D 2d 427; Rickert v. Packet Facilities, 35 A D 2d 711; Mike Nasti Sand Co. v. Almar Landscaping Corp., 34 A D 2d 554; cf. Seaman-Andwall Corp. v. Wright Mach. Corp., 31 A D 2d 136, affd. 29 N Y 2d 617.) “In any event, this is a case where orderly procedure requires a direction that a motion for summary judgment should await the service of pleadings delineating the issues.” (See Holmes v. Allstate Ins., 33 A D 2d 96, 99.) Concur—Nunez, J. P., McNally,. Tilzer, Eager and Capozzoli, JJ.