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MARY WENTZ v. HAVENDALE REALTY CO. (05/15/68)

NEW YORK SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT 1968.NY.41608 <http://www.versuslaw.com>; 292 N.Y.S.2d 331; 57 Misc. 2d 139 May 15, 1968 MARY WENTZ, RESPONDENT,v.HAVENDALE REALTY CO., INC., APPELLANT Appeal (1) from an order of the Civil Court of the City of New York, County of Queens (Meyer Tobias, J.), entered November 28, 1967, which granted a motion made by plaintiff under CPLR 3213 for summary judgment and, (2) from the judgment entered thereon. Victor J. Carbonaro for appellant. No appearance for respondent. Concur -- McDonald, P. J., Groat and Schwartzwald, JJ. Author: Per Curiam


Appeal (1) from an order of the Civil Court of the City of New York, County of Queens (Meyer Tobias, J.), entered November 28, 1967, which granted a motion made by plaintiff under CPLR 3213 for summary judgment and, (2) from the judgment entered thereon.

Concur -- McDonald, P. J., Groat and Schwartzwald, JJ.

Author: Per Curiam

 The remedy of summary judgment in lieu of complaint is available only in an action "based upon a judgment or instrument for the payment of money only" (CPLR 3213). The instant suit to recover a payment for a mortgage placement fee, in excess of that stipulated in a brokerage commission agreement, does not come within the scope of the quoted language (cf. Burnell v. Peoples Sav. Bank of Yonkers, 54 Misc. 2d 140; Channel Excavators v. Amato Trucking Corp. 48 Misc. 2d 429; Embassy Inds. v. SML Corp., 45 Misc. 2d 91). The judgment and order should be unanimously reversed, with $10 costs to defendant, motion denied, and plaintiff's time to serve a complaint extended until 10 days after service of copy of order hereon.

Judgment and order reversed, etc.

Disposition

Judgment and order reversed, etc.

19680515

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