Orenstein v. Orenstein

The remedy of summary judgment in lieu of a complaint is available only in an action ‘1 based upon a judgment or instrument for the payment of money only ” (CPLR 3213). The instant suit, to recover payments pursuant to a separation agreement, does not come within the purview of the quoted language (see, Signal Plan v. Chase Manhattan Bank, 23 A D 2d 636, 637; Guele v. Scaiano, 56 Misc 2d 1040; Burnell v. Peoples Sav. Bank, 54 Misc 2d 140).

The 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 a copy of the order hereon.

Concur — Groat, P. J., Schwartzwald and Margett, JJ.

Order reversed, etc.