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CIVIL COURT OF THE CITY OF NEW YORK, QUEENS COUNTY 1968.NY.43173 <>; 295 N.Y.S.2d 116; 58 Misc. 2d 377 October 18, 1968 LINA ORENSTEIN, PLAINTIFF,v.ROBERT ORENSTEIN, DEFENDANT Dikman & Dikman (Michael Dikman of counsel), for plaintiff. Milton M. Meyer for defendant. Leonard L. Finz, J. Author: Finz

Leonard L. Finz, J.

Author: Finz

 The primary and novel issue before the court is whether a separation agreement can serve as the proper basis for a motion for summary judgment in lieu of complaint under CPLR 3213. Such a motion may be brought "when an action is based upon a judgment or instrument for the payment of money only".

Historically, there was no similar procedure in either the Civil Practice Act or in the Rules of Civil Practice, both predecessors of the CPLR. The relief available under the subject section was a pure creation of statutory enactment which became known as CPLR 3213, effective September 1, 1963. To the extent that 3213 is rooted neither in statutory nor case law precedent, the full impact and ambit of its application continues to undergo judicial testing and review with respect to the scope and range of its domain.

The First Report to the Legislature prior to the enactment of CPLR 3213 indicates that it was the intention of the framers to provide a speedy and effective means of securing a judgment on claims presumptively meritorious. (See First Preliminary Rep. of Advisory Committee on Practice and Procedure, p. 91; N. Y. Legis. Doc., 1957, No. 6 [b], p. 91.) Unfortunately, there is no specific amplification concerning the legislative intent surrounding the use of the words "instrument for the payment of money only." Even the later reports to the Legislature up to the eve of the section's enactment are bare of any directives of intent addressed to the subject words. (See Fifth Report; N. Y. Legis. Doc., 1961, No. 15, p. 492; Sixth Report; N. Y. Legis. Doc., 1962, No. 8, p. 338.)

It would appear, therefore, that the procedure under CPLR 3213 was enacted to provide ostensibly a route which a litigant could pursue toward quick judgment if he could demonstrate a presumptively meritorious action readily definable, and with payment terms that were unequivocal and unconditional. The case law addressed to the subject section has followed generally the tenor and tone of the language of CPLR 3213.

In an early clarification of the section, the Appellate Term, Second Department (in 1964, one year after the section's enactment) held that the remedy of summary judgment in lieu of a complaint did not lie in an action "to recover security deposited under the terms of a lease" (Embassy Inds. v. S M L Corp., 45 Misc. 2d 91, 92).

By reason of the Embassy decision, which is a repeatedly-cited authority for the denial of CPLR 3213 relief, it appears unalterably clear that "security deposited under a lease" is not an action based upon an "instrument for the payment of money only." The learned court's holding in the Embassy case (supra) is most sound when one considers that the return of a security deposit under a lease is usually conditioned upon many factors which lie outside of the bare "security return" recital, many of which involve the performance of the terms of the lease by the very litigant seeking the relief. To grant CPLR 3213 relief under such disputed circumstances would indeed provide a huge media through which almost every conceivable action could be brought. Such was not the intent of the legislative authors of the section.

Similarly, CPLR 3213 relief was denied in an action based upon a prepayment clause in a mortgage. (Burnell v. Peoples Sav. Bank, 54 Misc. 2d 140.) So, too, did the Appellate Term, Second Department hold that an escrow agreement was not within the purview of CPLR 3213 (Vanni v. Long Is. City Sav. & Loan Assn., 53 Misc. 2d 453).

Applying the same reasoning, the court in Lopez v. Perry (53 Misc. 2d 445) held that an instrument calling for the payment of a deposit toward the purchase of real property, which deposit was to be returned in the event the purchasers failed to obtain a mortgage under certain terms, was not such an instrument (see, also, Estate of Silverman, 43 Misc. 2d 675).

So too did the court in Signal Plan v. Chase Manhattan Bank (23 A.D.2d 636) hold that forged checks paid by a bank were not the proper subject of a CPLR 3213 motion.

More recent Appellate Term, Second Department decisions have similarly held that CPLR 3213 relief would neither be available in an action to recover a payment for a mortgage placement fee in excess of that stipulated in a brokerage commission (Wentz v. Havendale Realty Co., 57 Misc. 2d 139 [1968]), nor in an action to recover an escrow deposit under the terms of a contract to purchase a house. (Guele v. Scaiano, 56 Misc. 2d 1040 [1968].)

The first "enlargement" of the application of CPLR 3213 appears in Sherry Ice Cream Co. v. Kroggel (42 Misc. 2d 21). Here, the court held that a loan receipt, payable on demand, fell within the meaning of CPLR 3213. The gravamen and thrust of the Sherry holding is that the subject "instrument" need not be a negotiable one. The Sherry case was cited approvingly in Channel Excavators v. Amato Trucking Corp. (48 Misc. 2d 429), although it denied CPLR 3213 relief "outside the instrument itself". (See, also, M. Gilston, Inc. v. Ullman, 45 Misc. 2d 6; see, also, 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3213.01.)

Although some courts have "broadened" the construction of CPLR 3213, as in the case of holding that a letter agreement (Winter v. Starr Factors, N. Y. L. J., May 1, 1964, p. 18, col. 6) qualified as CPLR 3213 instruments, perhaps the most significant "enlargement" upon the application of CPLR 3213 is to be found in Baker v. Gundermann (52 Misc. 2d 639 [1966]). Here, the court held that a letter forwarded to the plaintiff would qualify as an "instrument" under the section. (See, also, Nasti Sand Co. v. Almar Landscaping Corp., 57 Misc. 2d 550 [1968].)

An examination of the law review articles addressed to the subject concern themselves mainly with the technical rather than the substantive issues under CPLR 3213 (see 40 St. John's L. Rev. 303, 339; 41 St. John's L. Rev. 279, 310; LPL "17 Syracuse L. Rev. 331"7 Syracuse L. Rev. 331, 334; 19 Syracuse L. Rev. 501, 502). Perhaps an insight into the evolvement of CPLR 3213 can be found in the motion practices of Virginia wherein an action may be instituted by the filing of a motion for judgment in the clerk's office in " all civil actions at law in a court of record seeking a judgment in personam for money only " (emphasis supplied; Va. Code Ann., Rules of Sup. Ct. of Appeals, rule 3:1). "This procedure, originally limited to specified actions calling for dispatch, proved highly successful and was continuously expanded. * * * The procedure is available in West Virginia in all contract actions and in actions against a surety. West Va. Code Ann., §§ 4308, 5524 [1955]; [now §§ 45-1-4; 56-2-6]. Kentucky, Mississippi, Missouri, Tennessee and Washington also have provisions for ...

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