Opinion
May 30, 1997
Present — Pine, J.P., Lawton, Callahan, Boehm and Fallon, JJ.
Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied plaintiff's motion for summary judgment in lieu of complaint pursuant to CPLR 3213 on the ground that the action is not based upon an instrument for the payment of money only. The documentary evidence submitted by plaintiff "fails to recite any agreement by the parties on several vital terms" (Mesaba Serv. Supply Co. v. Freedman Son, 111 A.D.2d 985, 986; see, Weissman v. Sinorm Deli, 88 N.Y.2d 437). Because "proof beyond the written instrument is necessary to substantiate the underlying obligation, resort to CPLR 3213 was inappropriate" (Mesaba Serv. Supply Co. v. Freedman Son, supra, at 986). (Appeal from Order of Supreme Court, Erie County, Rath, Jr., J. — Summary Judgment.)