Ellicottville Inn Condominium Assn. v Kempisty

Ellicottville Inn Condominium Assn. v Kempisty 2023 NY Slip Op 05826 Decided on November 17, 2023 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 17, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., MONTOUR, GREENWOOD, NOWAK, AND DELCONTE, JJ.
705 CA 22-01464

[*1]ELLICOTTVILLE INN CONDOMINIUM ASSOCIATION, PLAINTIFF-RESPONDENT,

v

BRIAN D. KEMPISTY, DEFENDANT-APPELLANT. (APPEAL NO. 2.)

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (JUSTIN L. HENDRICKS OF COUNSEL), FOR DEFENDANT-APPELLANT.

PETERS & MORIARTY, PC, ELLICOTTVILLE (KATHLEEN MORIARTY FLEMING OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

Appeal from a judgment of the Cattaraugus County Court (Ronald D. Ploetz, J.), entered July 27, 2022. The judgment awarded plaintiff the sum of $2,500 with interest.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and the motion is denied.

Memorandum: 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. County Court granted the motion, and defendant appeals from the judgment awarding plaintiff damages in the amount of $2,500 plus interest.

Preliminarily, we note that defendant's contention that service of process did not confer personal jurisdiction over him inasmuch as plaintiff did not comply with the due diligence requirement of CPLR 308 (4) was raised for the first time on appeal and thus is not properly before us (see Robert K. Lesser Living Trust, Dated Apr. 21, 2005 v United Secular Am. Ctr. for the Disabled, Inc., 164 AD3d 1659, 1661 [4th Dept 2018]).

We agree with defendant, however, that the 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; see Divito v Zastawrny LLC, 129 AD3d 1668, 1668 [4th Dept 2015]). Where, as here, an agreement " 'requires something in addition to [an] explicit promise to pay a sum of money, CPLR 3213 is unavailable' " (Divito, 129 AD3d at 1668; see Weissman v Sinorm Deli, 88 NY2d 437, 444 [1996]; Whitley v Pieri, 48 AD3d 1175, 1176 [4th Dept 2008]). We therefore reverse the judgment and deny the motion. In accordance with CPLR 3213, "the moving and answering papers shall be deemed the complaint and answer, respectively."

Entered: November 17, 2023

Ann Dillon Flynn

Clerk of the Court