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HERE THE MEMORANDUM OF UNDERSTANDING REQUIRED INSTALLATION AND MAINTENANCE OF A GUTTER, DOWNSPOUT AND FENCE FOR $2500; THE MEMORANDUM WAS NOT AN “INSTRUMENT FOR THE PAYMENT OF MONEY ONLY” AND THEREFORE “SUMMARY JUDGMENT IN LIEU OF COMPLAINT” WAS NOT AVAILABLE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined summary judgment in lieu of complaint was not available because the underlying document was not “an instrument for the payment of money only:”

By motion for summary judgment in lieu of complaint (see CPLR 3213), plaintiff moved for judgment in the amount of $2,500.00, plus interest, pursuant to a memorandum of understanding between the parties regarding the installation and maintenance of a gutter, downspout, and fence between their adjoining properties.  * * *

… [T]he court erred in granting the motion inasmuch as the parties’ memorandum of understanding is not “an instrument for the payment of money only” (CPLR 3213 …). Where, as here, an agreement ” ‘requires something in addition to [an] explicit promise to pay a sum of money, CPLR 3213 is unavailable’ ”  Ellicottville Inn Condominium Assn. v Kempisty, 2023 NY Slip Op 05826, Fourth Dept 11-17-23

Practice Point: When a document requires something in addition to the payment of money (here the installation and maintenance of a gutter, downspout and a fence) it is not an “instrument for the payment of money only” and cannot be enforced by summary judgment in lieu of complaint.

 

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