Opinion
2014-962 Q C
07-13-2015
Michael Zafran, Appellant, July 13, 2015 v. Michael S. Hertzberg, Respondent.
PRESENT: :
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered April 8, 2014. The order denied plaintiff's motion for summary judgment in lieu of complaint.
ORDERED that the order is affirmed, without costs.
Plaintiff moved for summary judgment in lieu of complaint pursuant to CPLR 3213 to recover the principal sum of $11,082 upon defendant's guaranty of a lease. Defendant did not oppose the motion. Plaintiff appeals from an order of the Civil Court which denied the motion and deemed the moving papers as the complaint.
The Civil Court properly denied plaintiff's motion for summary judgment in lieu of complaint (CPLR 3213). The guaranty being sued upon was a guaranty of the "full performance of the lease by tenant." Consequently, it does not qualify as an instrument for the payment of money only upon which an action can be commenced pursuant to CPLR 3213, since it went beyond merely guaranteeing the payment of money (see Associates Capital Servs. Corp. of N.J. v Lichtenstein, 96 AD2d 1089 [1983]; Associated Capital Servs. Corp. of N.J. v Lichtenstein, 94 AD2d 736 [1983]).
Accordingly, the order is affirmed.
Elliot, J.P., Pesce and Solomon, JJ., concur.
Decision Date: July 13, 2015