53 Misc. 2d 453 | N.Y. App. Term. | 1967
The procedure for summary judgment in lieu of a' complaint provided for in CPLB, 3213 is available only in an action “ based upon a judgment or instrument for the payment of money”. Under the circumstances here shown, the instant action to recover moneys allegedly improperly paid by defendant under a written escrow agreement is not an action based upon an instrument for the payment of money only.
The order should be unanimously modified by providing that the denial of the motion for summary judgment is without prejudice to renewal after joinder of issue upon formal pleadings, and as so modified, affirmed without costs. Plaintiff’s time to serve a complaint is extended until 10 days after service of a copy of the order hereon.
Concur — Gulotta, McDonald and Brenner, JJ.
Order modified, etc.
