Opinion
May 15, 1968
Appeal from the Civil Court of the City of New York, County of Queens, MEYER TOBIAS, J.
Victor J. Carbonaro for appellant.
No appearance for respondent.
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).
The 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 SCHWARTZWALD, JJ.
Judgment and order reversed, etc.