New York State Nurses Assn. v Daley

[*1] New York State Nurses Assn. v Daley 2006 NY Slip Op 52478(U) [14 Misc 3d 1210(A)] Decided on September 27, 2006 Supreme Court, New York County Payne, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2006
Supreme Court, New York County

New York State Nurses Association, Petitioner,

against

John T. Daley, JR. and MAUREEN M. DALEY, Respondents.



107925/06

Kibbie F. Payne, J.

Petitioner New York State Nurses Association (NYSNA) moves, by order to show cause, for summary judgment in lieu of complaint against respondents John T. Daley, Jr. and Maureen M. Daley, seeking $1,193,869.79 dollars plus interest (see CPLR 3213). Petitioner bases its motion on a number of checks defendant John T. Daley, Jr., former NYSNA controller and chief financial officer, issued to himself from NYSNA's account. Petitioner submits copies of over 100 NYSNA checks authorizing payment of funds to Daley, Jr., which he endorsed and certain non-party banks processed into respondents' accounts. Petitioner also submits a copy of a [*2]handwritten statement, dated May 30, 2006, bearing Daley, Jr.'s signature and providing that he "typed manual checks to himself" in the approximate total amount of "$600K." Chris Rossetti and Paul Petell, NYSNA auditors, signed the statement as witnesses present when it was made.

CPLR 3213 provides, in pertinent part:

"When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint."

The requirement that the action be based on an instrument for the payment of money only or a judgment is a "stringent" one (see Weissman v Sinorm Deli, Inc., 88 NY2d 437, 443 [1996]). "The prototypical example of an instrument within the ambit of the statute is of course . . . an unconditional promise to pay a sum certain, signed by the maker and due on demand or at a definite time" (id. at 444 [citation omitted]). While the statute's requisite threshold has "generated a spate of litigation," it is clear that an instrument for purposes of section 3213 "must be some variety of commercial paper in which the party to be charged has formally and explicitly acknowledged indebtedness" (id.). To make a prima facie case, there must be an instrument by which the debtor expressly obligated himself to make the payment sought (see generally Interman Ind. Products, Ltd. v R.S.M. Electron Power, Inc., 37 NY2d 151, 155-156 [1975]).

Here, contrary to the contention of petitioner, the checks made out to Daley, Jr. from petitioner's account are not instruments for the payment of money only. Daley, Jr. does not therein promise to pay petitioner any sum of money or otherwise acknowledge indebtedness of $1,193,869.79. Daley, Jr.'s statement provides that he wrote checks to himself in an approximate total amount of $600,000 and "will attempt to make restitution contingent on the outcome of finding a new job." Petitioner does not argue that this statement is an instrument for the payment of money only. In any event, petitioner seeks to recover $1,193,869.79 from respondents, an amount much greater than said statement indicates Daley, Jr. appropriated. Accordingly, it is

ORDERED that this motion for summary judgment in lieu of complaint pursuant to CPLR 3213 is denied; it is further

ORDERED that plaintiff shall serve a formal complaint upon defendant's counsel within 20 days of service on plaintiff's counsel of a copy of this order with notice of entry and defendant shall move against or serve an answer to the complaint within 20 days after service of the complaint; and it is further

ORDERED that, as this special proceeding was previously converted to an action pursuant to CPLR 103 (c), the action shall bear the following caption:

"New York State Nurses Association,

Plaintiff,

-against-

John T. Daley, Jr. and Maureen M. Daley,

Defendants."

DATED:Hon. Kibbie F. Payne, J.S.C.