Appeal from an order of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered November 17, 2009.
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on December 7, 2010
PRESENT:WESTON, J.P., GOLIA and RIOS, JJ.
The order denied plaintiff's motion for summary judgment in lieu of complaint.
ORDERED that the order is affirmed, without costs.
By summons and amended notice of motion for summary judgment in lieu of complaint (CPLR 3213), plaintiff sought judgment in the sum of $20,000 based on a dishonored check. It is undisputed that defendant issued a check in the sum of $20,000 as a down payment on a contract to purchase certain premises and that defendant subsequently stopped payment on the check. The Civil Court denied plaintiff's motion for summary judgment in lieu of complaint on the ground that the action is not one based upon an instrument for the payment of money only and, thus, does not qualify for CPLR 3213 relief. The Civil Court further directed plaintiff to serve and file a complaint.
At the outset, we note that generally an action to recover on a dishonored check qualifies for CPLR 3213 relief. However, the record establishes that the check in question was payable to the order of an attorney's escrow account and there was no showing that the check had been transferred or negotiated to plaintiff (see UCC 3-201; 3-202; 1-201 ). Consequently, plaintiff was not a "holder" of the instrument (UCC 1- 201 ), and plaintiff may not seek to enforce payment of the check in its own name (see UCC 3-301; cf. UCC 3-201; Carlin v Jemal, 68 AD3d 655 ). As a result, to the extent this action seeks to recover on an instrument for the payment of money, it fails and, thus, does not qualify for summary treatment under CPLR 3213. Accordingly, the order denying plaintiff's motion for summary judgment in lieu of complaint is affirmed.
Weston, J.P., Golia and Rios, JJ., concur. Decision Date: December 07, 2010
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