Summary
In Beal Bank v Melville Magnetic Resonance Imaging, P.C., 270 A.D.2d. 440 [2nd Dep't. 2000], the court refers to a Court of Appeals case, Weissman v Sinorm Deli, 88 N.Y.2d 437, which held that an instrument is one for the payment of money only, if it does not require outside evidence, "other than a simple proof of nonpayment or a similar de minimis deviation from the face of the document".
Summary of this case from Amalgamated Bank v. the National MuseumOpinion
Submitted February 16, 2000.
March 27, 2000.
In an action to recover on a promissory note brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendants appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated March 29, 1999, which granted the motion.
Shiff Tisman, New York, N.Y. (Laurence Shiff and Stuart Rebish of counsel), for appellants.
Harris Beach Wilcox, LLP, New York, N.Y. (William M. O'Conner and Matthew Hearle of counsel), for respondent.
Before: GUY JAMES MANGANO, P.J., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN, ANITA R. FLORIO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, and the motion is denied.
"[A] document comes within CPLR 3213 'if a prima facie case would be made out by the instrument and a failure to make the payments called for by its terms'" (Weissman v. Sinorm Deli, 88 N.Y.2d 437, 444 , quoting Interman Indus. Prods. v. R.S.M. Electron Power, 37 N.Y.2d 151, 155 ). "The instrument does not qualify if outside proof is needed, other than simple proof of nonpayment or a similar de minimis deviation from the face of the document" (Weissman v. Sinorm Deli, supra, at 444). "Where the instrument requires something in addition to the defendant's explicit promise to pay a sum of money, CPLR 3213 is unavailable" (Weissman v. Sinorm Deli, supra, at 444). In the case at bar, since outside proof was required to determine the sum due upon the promissory note at issue in the event of default, the granting of the plaintiff's motion for summary judgment in lieu of complaint was inappropriate.