Opinion
June 7, 1967
Appeal from the County Court, Westchester County, ROBERT J. TRAINOR, J.
Robert E. Perin for appellant.
Cerrato, Nayor Edmiston ( Alexander Yager of counsel), for respondent.
The procedure for summary judgment in lieu of a complaint is available only in an action "based upon a judgment or instrument for the payment of money" (CPLR 3213). The instant action to recover moneys allegedly paid because of economic duress, pursuant to a prepayment clause of a mortgage, is not such an action. (Cf. Signal Plan v. Chase Manhattan Bank, 23 A.D.2d 636; Matter of Silverman v. Manufacturers Hanover Trust Co., 43 Misc.2d 675.) We pass on no other question.
The order should be unanimously modified by providing that the denial of the motion for summary judgment is without prejudice to renewal after joinder of issue upon formal pleadings, and as so modified, affirmed without costs. Plaintiff's time to serve a complaint is extended until 10 days after service of a copy of the order hereon.
Concur — SCHWARTZWALD, FANELLI and BECKINELLA, JJ.
Order modified, etc.