Wentz v. Havendale Realty Co. — 57 Misc. 2d 139

Majority

p. 139

Mary Wentz, Respondent, v. Havendale Realty Co., Inc., Appellant.

Supreme Court, Appellate Term, Second Department,

May 15, 1968.

Victor J. Carbonaro for appellant. No appearance for respondent.

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 a payment for a mortgage placement fee, in excess of that stipulated in a brokerage commission agreement, does not come within the scope of the quoted language (cf. Burnell v. Peoples Sav. Bank of Yonkers, 54 Misc 2d 140 ; Channel Excavators v. Amato Trucking Corp. 48 Misc 2d 429 ; Embassy Inds. v. SML Corp., 45 Misc 2d 91 ).

p. 140

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

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

Judgment and order reversed, etc.

Cases cited

Burnell v. Peoples Savings Bank of Yonkers 54 Misc 2d 140 N.Y. App. Term 1967-06-07 p. 139
Channel Excavators, Inc. v. Amato Trucking Corp. 48 Misc 2d 429 N.Y. Sup. Ct. 1965-12-08 p. 139
Embassy Industries, Inc. v. S M L Corp. 45 Misc 2d 91 N.Y. App. Term 1964-12-09 p. 139