Wentz v. Havendale Realty Co.

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).

*140The 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.