Opinion
Index No. 652616/2023
07-27-2023
Lawrence A. Omansky, Plaintiff, v. Chase Manhattan Bank and Kimalee Blake, Defendants.
Lawrence A. Omansky, Esq., plaintiff pro se. Stagg Wabnik Law Group LLP, Garden City, NY (Brian A. Lacoff and Michelle E. Tarson of counsel), for defendants.
Unpublished Opinion
Lawrence A. Omansky, Esq., plaintiff pro se.
Stagg Wabnik Law Group LLP, Garden City, NY (Brian A. Lacoff and Michelle E. Tarson of counsel), for defendants.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 10, 12, 13, 14, 15, 16, 17, 18 were read on this motion for SUMMARY JUDGMENT IN LIEU OF COMPLAINT.
This is a CPLR 3213 motion-action arising from a dispute over to two client checks deposited in an attorney escrow account held by plaintiff pro se Lawrence A. Omansky, Esq., at defendant Chase Manhattan Bank. Plaintiff's motion for summary judgment in lieu of complaint is denied, and this motion-action is converted into a plenary action.
BACKGROUND
Plaintiff represents that when he initially deposited the checks on Friday, May 19, 2023, Chase placed a hold on the availability of the deposited funds because the two checks had the same check number and amount. (See NYSCEF No. 3 at ¶ 5 [affidavit]; NYSCEF No. 4 [copies of checks].) Plaintiff further represents that the following Monday, May 22, he was told by a bank teller, defendant Kimalee Blake, that the checks had cleared and that the hold had been lifted; and that on May 22, in reliance on this representation, he withdrew the deposited funds at his client's instructions and sent her the funds in bitcoin. (NYSCEF No. 3 at ¶ 7.) Between May 22 and May 25, Chase reversed the deposit and withdrew the total amount of the checks from plaintiff's escrow account, presumably on its conclusion that the checks were fraudulent.
Plaintiff has submitted an email from his client in which she stated that she needed the funds in bitcoin because she was out of the country. (See NYSCEF No. 6.)
Plaintiff contends that Chase's withdrawal of the funds from his escrow account was improper, and that it injured other clients of his for whom the withdrawn funds were being held in escrow. On May 30, 2023, he brought on this motion-action by order to show cause. (See NYSCEF No. 2.) Plaintiff seeks "restitution of the... [funds] illegally converted by Defendants," along with sanctions of $5,000 and attorney fees of $2,500 in the event of noncompliance. (Id. at 1-2 [proposed OSC].) Plaintiff requested interim relief in the form of a declaration that plaintiff is entitled to have the funds at issue returned to him and a temporary restraining order barring Chase from "withdrawing, removing, and/or in any way reducing" the funds held in the escrow account. (Id. at 4.) This court signed the proposed OSC. (NYSCEF No. 10.) The court denied plaintiff's requests for interim relief because plaintiff had neither provided the notice required by 22 NYCRR 202.7 (f) nor shown that notice should be excused.
DISCUSSION
Defendants argue that the motion should be denied because plaintiff may not pursue his claims by means of a CPLR 3213 motion brought on by order to show cause. This court agrees.
Given the court's disposition of the motion, the court does not reach defendants' additional argument that the presence of factual issues precludes the grant of summary judgment regardless.
1. When an action is based upon an instrument for the payment of money only, "the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint"-not an order to show cause. (CPLR 3213 [emphasis added].) Nor is this difference merely one of form. A CPLR 3213 motion commences an action, albeit under an accelerated procedural framework. CPLR 3213 therefore requires a plaintiff to afford the defendant the same time to appear and respond that the defendant would have under CPLR 320 (a) in an action commenced by summons and complaint. That requirement would be made superfluous if a CPLR 3213 plaintiff could obtain an order to show cause setting a shorter, court-determined deadline for the defendant to appear and respond. Courts have thus held that a plaintiff may not commence a CPLR 3213 motion-action by order to show cause. (See Matter of Bullard, 153 Misc.2d 136, 137-138 [Sup Ct, Saratoga County 1992]; accord Rivers v Cambridge Mgt. Group LLC, 2007 NY Slip Op 51713[U], at *3 [Sup Ct, Kings County Sept. 10, 2007].)
CPLR 3213 motion-actions thus differ from special proceedings. CPLR 403, governing service and briefing for petitions commencing special proceedings, contains both a subsection setting specific deadlines (CPLR 403 [b]) and a subsection permitting a court to "grant an order to show cause to be served, in lieu of a notice of petition[,] at a time and in a manner specified therein" (CPLR 403 [d]). CPLR 3213 lacks the latter safety-valve provision.
Here, to be sure, defendants were able to appear and file opposition papers (though they note the limited time they had to do so). (See NYSCEF No. 14 at ¶ 3 [affirmation in opposition].) In these circumstances, one might conceivably conclude that any prejudice to defendants from plaintiff's use of an order to show cause to bring on this action has been ameliorated. (Cf. Capolino v Goren, 155 A.D.3d 1414, 1415-1416 [3d Dept 2017] [declining to dismiss CPLR 3213 motion-action because although service had not been made in the manner required to commence an action, defendant, after getting actual notice, albeit by that defective service, appeared and "submitted a cross motion that raised various objections and included substantive opposition before [defendant was] properly served"].) But even if the court were to overlook this procedural defect, plaintiff's claims would still not be entitled to CPLR 3213 treatment. Those claims are not based on an instrument for the payment of money only, as CPLR 3213 requires.
2. CPLR 3213 applies only if the movant's claim is based on an "instrument for the payment of money only." As a result, "where the instrument" relied on by the movant "requires something in addition to defendant's explicit promise to pay a sum of money, CPLR 3213 is unavailable." (Weissman v Sinorm Deli, Inc., 88 N.Y.2d 437, 444 [1996].) For example, "if outside proof is needed" of the entitlement to relief beyond the instrument itself and "simple proof of nonpayment or a similar de minimis deviation from the face of the document" (such as referring to a commonly available interest rate), a movant may not rely on CPLR 3213. (Id.)
Plaintiff's claims do not come within the scope of CPLR 3213. A check qualifies as an instrument for the payment of money only. (Thunderball Mktg. v Riemer, 273 A.D.2d 29, 30 [1st Dept 2000].) But plaintiff is not simply seeking payment on the two checks that Chase concluded were fraudulent. Rather, he claims that defendants acted wrongfully in reversing the deposit after allegedly having told him that the checks had cleared, and in withdrawing funds from his escrow account to cover the check amounts. (See NYSCEF No. 3 at 10-18.) Plaintiff himself describes these claims as sounding in fraud, promissory estoppel, and unjust enrichment (see id.)-not in payment on negotiable instruments in the form of checks. Resolving the claims would entail inquiring into issues beyond the four corners of the checks: for example, the statements by defendant Blake on which plaintiff relied and the reasonableness of his reliance; Chase's reasons for reversing the deposit; and the permissibility of Chase's doing so under the governing account agreement. These inquiries far exceed the scope of a CPLR 3213 motion-action.
Accordingly, it is
ORDERED that plaintiff's CPLR 3213 motion is denied; and it is further
ORDERED that the motion-action is converted into a plenary action, with plaintiff's motion papers deemed to be a complaint and supporting exhibits, and defendants' opposition papers deemed to be an answer and supporting exhibits; and it is further
ORDERED that the parties shall appear before this court for a telephonic preliminary conference on August 11, 2023.