Waldom Construction Co. v. Uris 55 Water Street Co.

Appellate Division of the Supreme Court of New York

Waldom Construction Co. v. Uris 55 Water Street Co.

49 A.D.2d 515, 370 N.Y.S.2d 87, 1975 N.Y. App. Div. LEXIS 10355

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 1, 1975

StatusPublished

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This text of 49 A.D.2d 515 (Waldom Construction Co. v. Uris 55 Water Street Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Waldom Construction Co. v. Uris 55 Water Street Co., 49 A.D.2d 515, 370 N.Y.S.2d 87, 1975 N.Y. App. Div. LEXIS 10355 (N.Y. Ct. App. 1975).

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Opinion

Order, Supreme Court, New York County, entered on January 2, 1975, which granted plaintiff’s motion for summary judgment made in lieu of serving a complaint (CPLR 3213), and judgment entered thereon on the same date, unanimously reversed, on the law, the [516]*516judgment vacated, and the motion denied, without prejudice to any further proceedings after service of pleadings. Appellant shall recover of respondent $60 costs and disbursements of this appeal. The complaint shall be served within 20 days after service upon plaintiff of a copy of the order to be entered hereon, with notice of entry, and the answer shall be served within 20 days after service of the complaint. In our opinion the letter of July 22, 1974, written upon defendant’s letterhead, stating that a check had been prepared in final payment of work performed, and that the check would be remitted as soon as plaintiff signed a certificate of completion and returned it, does not qualify as an instrument for the payment of money only within the contemplation of CPLR 3213. (See Interman Ind. Prods, v R.S.M. Electron Power, 37 NY2d 151.) Therefore, plaintiff may not avail itself of the provisions of CPLR 3213. The merits of plaintiff’s claim have not been considered. Disposition on the merits must await service of pleadings and further proceedings thereon. Concur—Stevens, P. J., Kupferman, Murphy, Tilzer and Capozzoli, JJ.

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Order, Supreme Court, New York County, entered on January 2, 1975, which granted plaintiff’s motion for summary judgment made in lieu of serving a complaint (CPLR 3213), and judgment entered thereon on the same date, unanimously reversed, on the law, the [516]*516judgment vacated, and the motion denied, without prejudice to any further proceedings after service of pleadings. Appellant shall recover of respondent $60 costs and disbursements of this appeal. The complaint shall be served within 20 days after service upon plaintiff of a copy of the order to be entered hereon, with notice of entry, and the answer shall be served within 20 days after service of the complaint. In our opinion the letter of July 22, 1974, written upon defendant’s letterhead, stating that a check had been prepared in final payment of work performed, and that the check would be remitted as soon as plaintiff signed a certificate of completion and returned it, does not qualify as an instrument for the payment of money only within the contemplation of CPLR 3213. (See Interman Ind. Prods, v R.S.M. Electron Power, 37 NY2d 151.) Therefore, plaintiff may not avail itself of the provisions of CPLR 3213. The merits of plaintiff’s claim have not been considered. Disposition on the merits must await service of pleadings and further proceedings thereon. Concur—Stevens, P. J., Kupferman, Murphy, Tilzer and Capozzoli, JJ.

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Bluebook (online)

49 A.D.2d 515, 370 N.Y.S.2d 87, 1975 N.Y. App. Div. LEXIS 10355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waldom-construction-co-v-uris-55-water-street-co-nyappdiv-1975.

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