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Imbriano v. Seaman

Other Lower Courts

September 28, 2001

John Imbriano, Plaintiff,
v.
Melvin Seaman, Defendant.

Page 358

COUNSEL

Derrick R. Williams, Huntington, for plaintiff.

Melvin Seaman, defendant pro se.

OPINION

Kenneth L. Gartner, J.

The plaintiff's motion for summary judgment in lieu of complaint pursuant to CPLR 3213, as made applicable to the District Court by Uniform District Court Act ยง 1004, requires this court to part company with the only prior authority on a point raised.

Plaintiff's motion is not opposed by the defendant, who has defaulted. Nevertheless, the sua sponte review which this court is required to perform reveals two issues which must be addressed concerning (1) the plaintiff's substantive entitlement to the relief sought, and (2) the ability of this court to exercise jurisdiction at all.

The latter issue requires this court to consider whether a defendant's default on a CPLR 3213 motion where the plaintiff has made " short service" deprives the court of jurisdiction entirely. In the only extant decision directly on point, Kemp v Hinkson (73 Misc.2d 76, 78 [Suffolk Dist Ct 1973]), the court held that the action must be dismissed without prejudice. For the reasons set forth below, this court disagrees.

For reasons also set forth below, this court denies the plaintiff's motion. However, pursuant to CPLR 3213 this court deems the moving papers to be plaintiff's complaint, and declines to dismiss the plaintiff's action.

The plaintiff contends that he is owed a sum of money based on a loan made to the defendant by way of personal check. The plaintiff submits the check as negotiated by the defendant. The plaintiff contends that he demanded repayment from the defendant, who refused.

A plaintiff is entitled to move for summary judgment in lieu of complaint pursuant to CPLR 3213 if his claim is based upon " an instrument for the payment of money only." A plaintiff moving under CPLR 3213 must demonstrate that the claim is based on a judgment or an instrument itself and proof of nonpayment

Page 359

according to its terms (Seaman-Andwall Corp. v Wright Mach. Corp., 31 A.D.2d 136 [1st Dept. 1968]). If proof outside of the instrument itself is needed to make a case, other than simple proof of nonpayment, the instrument does not qualify (Channel Excavators v Amato Trucking Corp., 48 Misc.2d 429 [Sup Ct, Nassau County 1965]).

In Farca v Farca (216 A.D.2d 520 [2d Dept. 1995]), the Appellate Division determined that a negotiated check did not qualify as an " instrument for the payment of money only" for these purposes, even where the plaintiff had placed on the check a notation " loan due by [date]." (Id. at 521.) The Appellate Division stated that the notation, despite the check's negotiation by ...


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