Chipetine v. McEvoy

—In an action to recover on a promissory note, the plaintiff appeals from an order of the Supreme Court, Queens County (Posner, J.), dated July 31, 1991, which denied his motion pursuant to CPLR 3213 for summary judgment in lieu of complaint.

Ordered that the order is modified, by adding a provision thereto that the moving papers and the answering papers are deemed the complaint and answer; as so modified, the order is affirmed, with costs payable by the appellant.

We agree with the Supreme Court that there are material issues of fact which require trial. Bracken, J. P., Balletta, Eiber, O’Brien and Pizzuto, JJ., concur.