Opinion
December 9, 1964
Appeal from the Civil Court of the City of New York, County of Kings, HERBERT I. BAYEVSKY, J.
Kaufman Serota ( Irving Serota of counsel), for appellants.
Gottlieb, Konove Zeck ( Robert Konove of counsel), for respondent.
The remedy of summary judgment in lieu of a 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 security deposited under the terms of a lease does not come within the purview of the quoted language.
The judgment and order should be unanimously reversed, with $10 costs to defendants, motion denied and plaintiff's time to serve a complaint is extended until 10 days after service of a copy of the order hereon.
Concur — DI GIOVANNA, BENJAMIN and MARGETT, JJ.
Judgment and order reversed, etc.