Opinion
June 1, 1972
Order, Supreme Court, New York County, entered on January 28, 1972, granting reargument and, upon reargument, granting summary judgment pursuant to CPLR 3213, and judgment entered thereon on February 3, 1972, unanimously reversed, on the law, the motion for summary judgment denied and the judgment vacated. Appellant shall recover of respondent $50 costs and disbursements of these appeals. Plaintiff-respondent sued upon a guarantee by defendant-appellant of "the full performance and observance of all the covenants, conditions and agreements" which were to be performed by the tenant under a lease. The guarantee is not an instrument for the payment of money only so as to permit institution of this action by means of a motion for summary judgment in lieu of a complaint (CPLR 3213). The instrument in suit goes beyond merely guaranteeing payment of rent, and as such it possesses characteristics quite different from one for the payment of a sum of money only. "Had the Legislature intended that this simplified procedure for accelerated judgment [CPLR 3213] be applicable to agreements wherein but one [or some] of the provisions related to the payment of money, the word 'only' would have been deleted from the critical phrase in the provision under discussion." ( Wagner v. Cornblum, 36 A.D.2d 427, 429.) Settle order on notice providing for the service of formal pleadings herein.
Concur — Stevens, P.J., Markewich, Murphy, Tilzer and Capozzoli, JJ.