Kays v. Antzoulatos

211 A.D.3d 925

181 N.Y.S.3d 581

James KAYS, et al., appellants,

v.Alex G. ANTZOULATOS, etc., respondent.

2020–06971

Index No. 706063/20

Supreme Court, Appellate Division, Second Department, New York.

Submitted—November 14, 2022

December 21, 2022

The Law Offices of Richard G. Monaco, P.C., South Salem, NY, for appellants.

FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, WILLIAM G. FORD, BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action to recover upon an instrument for the payment of money only, commenced by motion, inter alia, for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiffs appeal from an order of the Supreme Court, Queens County (Allan B. Weiss, J.), entered September 4, 2020. The order, insofar as appealed from, denied that branch of the plaintiffs’ motion which was for summary judgment in lieu of complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiffs’ motion which was for summary judgment in lieu of complaint is granted.

The plaintiffs commenced this action against the defendant to recover upon an instrument for the payment of money only by motion, inter alia, for summary judgment in lieu of complaint pursuant to CPLR 3213. The plaintiffs alleged that an agreement where the defendant agreed to pay James Kays the sum of $370,000 (hereinafter the agreement) was "an instrument for the payment of money only" within the meaning of CPLR 3213, and that the defendant defaulted under the terms of the agreement. The defendant opposed the motion. In an order entered September 4, 2020, the Supreme Court, among other things, denied that branch of the plaintiffs’ motion which was for summary judgment in lieu of complaint. The plaintiffs appeal.

The plaintiffs established, prima facie, that the agreement was an "instrument for the payment of money only" within the meaning of CPLR 3213 (see Weissman v. Sinorm Deli, 88 N.Y.2d 437, 444, 646 N.Y.S.2d 308, 669 N.E.2d 242 ; Interman Indus. Prods. v. R.S.M. Electron Power, 37 N.Y.2d 151, 155, 371 N.Y.S.2d 675, 332 N.E.2d 859 ; Sun Convenient, Inc. v. Sarasamir Corp., 123 A.D.3d 906, 907, 999 N.Y.S.2d 432 ; East N.Y. Sav. Bank v. Baccaray, 214 A.D.2d 601, 602, 625 N.Y.S.2d 88 ). The plaintiffs also established, prima facie, that the defendant defaulted under the terms of the agreement (see Torto Note Member, LLC v. Babad, 192 A.D.3d 843, 844–845, 144 N.Y.S.3d 193 ; Metro–Gem Leasing & Funding Corp. v. Dancy Auto Group, LLC, 183 A.D.3d 611, 612–613, 123 N.Y.S.3d 617 ; Porat v. Rybina, 177 A.D.3d 632, 633, 111 N.Y.S.3d 625 ).

In opposition, ...