Menicucci Villa & Assoc., PLLC v Alovic

[*1] Menicucci Villa & Assoc., PLLC v Alovic 2012 NY Slip Op 51460(U) Decided on July 25, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 25, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-2199 RI C.

Menicucci Villa & Associates, PLLC, Appellant,

against

Albert Alovic, Respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered July 20, 2011. The order denied plaintiff's motion for summary judgment in lieu of complaint and dismissed the action.

ORDERED that the order is modified by striking the provision dismissing the action and by providing that plaintiff is directed to serve and file a complaint within 20 days after service of a copy of this decision and order with notice of entry, with the answer to be served within 20 days after the service of the complaint; as so modified, the order is affirmed, without costs.

By summons and motion for summary judgment in lieu of complaint (CPLR 3213), plaintiff sought judgment in the sum of $20,000 based on a dishonored check. In support of the motion, plaintiff's attorney stated that "[t]he underlying facts are fully set forth in the accompanying affidavit of James Prendamano," which affidavit had been submitted in a related action. However, neither the Prendamano affidavit nor a copy of the dishonored check were annexed to the motion papers. In opposition to the motion, defendant asserted that he had issued the $20,000 check as a down payment on a contract to purchase certain real property and that he had subsequently stopped payment on the check. Pursuant to the contract of sale, the check was issued to plaintiff as escrow agent of both the seller of the premises and of defendant. The Civil [*2]Court denied plaintiff's motion for summary judgment in lieu of complaint on the ground that the action is not one based upon an instrument for the payment of money only and, thus, did not qualify for CPLR 3213 relief. The court also dismissed the action, noting that plaintiff should have discontinued the related action before commencing this one and that plaintiff was not the proper party to enforce the contract terms.

An action to recover on a dishonored check qualifies for CPLR 3213 relief. However, here, plaintiff did not establish its prima facie entitlement to judgment as a matter of law since it did not come forward with proof establishing the existence of the alleged check executed by defendant and its dishonor. Moreover, the affirmation submitted by an associate of plaintiff's law firm lacked probative value because it was not based upon personal knowledge of the facts (see CPLR 3212; Wolfson v Rockledge Scaffolding Corp., 67 AD3d 1001 [2009]).

We note that while a breach of a related contract pursuant to which an instrument for the payment of money only was given will generally not defeat a motion for summary judgment in lieu of complaint, this rule does not apply where it is shown that the instrument and contract are inextricably intertwined and that the alleged breach of contract creates material triable issues of fact (see New York Community Bank v Fessler, 88 AD3d 667 [2011]; Lorber v Morovati, 83 AD3d 799 [2011]; Vecchio v Colangelo, 274 AD2d 469 [2000]; Cohen v Marvlee, Inc., 208 AD2d 792 [1994]). In opposition to plaintiff's motion, defendant established that the check was a significant and inextricable part of the contract of sale and that triable issues of fact exist regarding the seller's alleged breach of the contract. Thus, plaintiff's motion for summary judgment was properly denied, but the action should not have been dismissed. Rather, the Civil Court should have directed plaintiff to serve and file a complaint. We modify the order accordingly.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: July 25, 2012