Guele v. Scaiano — 56 Misc. 2d 1040

Majority

p. 1040

Joseph Guele et al., Respondents, v. Anthony Scaiano, as Escrowee, Appellant.

Supreme Court, Appellate Term, Second Department,

April 17, 1968.

Anthony Scaiano, appellant in person. Glabman & Rubenstein (Jerome M. Leitner of counsel), for respondents.

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 an escrow deposit, under the terms

p. 1041

of a contract to purchase a house, does not come within the purview of the quoted language (Embassy Ind. v. S M L Gorp., 45 Mise 2d 91).

The judgment and order should he unanimously reversed, with $10 costs to defendant, motion denied, and plaintiffs’ time to serve a complaint is extended until 10 days after service of a copy of the order hereon.

Concur — McDonald, P. J., Groat and Rinaldi, JJ.

Judgment and order reversed, etc.