Stallone v. Rostek

27 A.D.3d 449, 809 N.Y.S.2d 920

Opinion

In an action to recover upon an instrument for the payment of money only; brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Jamieson, J.), dated March 28, 2005, which denied their motion.

Ordered that the order is affirmed, with costs.

“[A] document comes within CPLR 3213 ‘if a prima facie case would be made out by the instrument and a failure to make the payments called for by its terms’ . . . The instrument does not qualify if outside proof is needed, other than simple proof of nonpayment or a similar de minimis deviation from the face of the document” (Weissman v Sinorrn Deli, 88 NY2d 437, 444 [1996] [citations omitted]). Here, the Supreme Court correctly denied the plaintiffs’ motion for summary judgment since “outside proof’ requiring disclosure is necessary to determine, among other things, the distribution of the corporation’s net profits and accounts receivables (see Eisenberg v HSBC Payment Serv. [USA], 307 AD2d 950 [2003]; Russo v O’Meara, 300 AD2d 563 [2002]). Adams, J.P., Skelos, Fisher and Lunn, JJ., concur.