Bloom v. Lugli
| Decision Date | 01 February 2011 |
| Citation | 81 A.D.3d 579,916 N.Y.S.2d 139 |
| Parties | Eliot F. BLOOM, respondent, v. Russell LUGLI, et al., appellants. |
| Court | New York Supreme Court — Appellate Division |
John E. Lawlor, Mineola, N.Y., for appellant.
Eliot F. Bloom, Mineola, N.Y., respondent pro se.
REINALDO E. RIVERA, J.P., ANITA R. FLORIO, ARIEL E. BELEN, and LEONARD B. AUSTIN, JJ.
In an action to recover money allegedly owed under a certain agreement, brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendants appeal from an order and judgment (one paper) of the Supreme Court, Nassau County (Warshawsky, J.), entered November 19, 2009, which, in effect, granted the motion and is in favor of the plaintiff and against them in the principal sum of $350,000.
ORDERED that the order and judgment is reversed, on the law, with costs, the plaintiff's motion for summary judgment in lieu of complaint is denied, and the motion and answering papers are deemed to be the complaint and answer, respectively.
On August 15, 2006, the plaintiff and the defendant Northwestern Consultants, Inc. (hereinafter Consultants), entered into a joint venture agreement for the purpose of, among other activities, developing residential condominiums on property in Bay Shore. The joint venture agreement provided that Consultants would have a 55% ownership interest and the plaintiff a 45% ownership interest. According to Article X(10)(d) of the joint venture agreement, the plaintiff was responsible, inter alia, for filing and obtaining the necessary "zoning & developmental approvals."
Thereafter, on October 5, 2007, the plaintiff and the defendant Russell Lugli, on his own behalf and on behalf of Consultants, entered into an agreement to amend the joint venture agreement to reflect the plaintiff's sale of his rights and interest in both the development project in Bay Shore and the joint venture to the defendants for a total sum of $450,000. The $450,000 was to be paid to the plaintiff in three installments. The first $100,000 was paid at the time the agreement was signed. The second installment of $175,000 was to be paid on or before April 1, 2008, and the third installment in the amount of $175,000 was to be paid on October 1, 2008.
The fourth paragraph of the agreement dated October 5, 2007, provided that the plaintiff would continue to represent the defendants and the joint venture "in order to provide all legal representation necessary to complete the project with no fees to be charged."
The defendants failed to pay the plaintiff the second and third installments totaling $350,000. The plaintiff commenced this action to recover money owed under the agreement, brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213. The defendants opposed the motion on the ground, inter alia, that the agreement was not an instrument for the payment of money only. The Supreme Court granted the plaintiff's motion, and judgment was entered in favor of the plaintiff and against the defendants in the principal sum of $350,000. The defendants appeal.
Pursuant to CPLR 3213, a party may bring a motion in lieu of complaint when the action is "based upon an instrument for the payment of money only or upon any judgment." If an instrument contains an unconditional promise to pay asum certain over a stated period of time, it is considered an instrument for the payment of money only ( see Comforce Telecom, Inc. v. Spears Holding Co., Inc., 42 A.D.3d 557, 840 N.Y.S.2d 145; Gregorio v. Gregorio, 234 A.D.2d 512, 651 N.Y.S.2d 599).
"The instrument does not qualify if outside proof is needed, other than simple proof of nonpayment or a similar de minimis deviation from the face of the document" ( Weissman v. Sinorm Deli, 88 N.Y.2d 437, 444, 646 N.Y.S.2d 308, 669 N.E.2d 242; see Ro & Ke, Inc. v. Stevens, 61 A.D.3d 953, 878 N.Y.S.2d 394; Stallone v. Rostek, 27 A.D.3d 449, 809 N.Y.S.2d 920). The test as to...
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Northwestern Consultants, Inc. v. Bloom
...proof [was] required to determine if [Bloom] satisfied his obligations pursuant to the [Withdrawal Amendment]." Bloom v. Lugli. 81 A.D.3d 579, 916 N.Y.S.2d 139 (2d Dept. 2011). 8. Plaintiffs contend that they discontinued the California state court action because Bloom "had stone-walled [th......
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Lawrence v. Kennedy
...lieu of complaint when the action is “based upon an instrument for the payment of money only or upon any judgment” ( Bloom v. Lugli, 81 A.D.3d 579, 580, 916 N.Y.S.2d 139 see, Weissman v. Sinorm Deli, 88 N.Y.2d 437, 444, 646 N.Y.S.2d 308, 669 N.E.2d 242 [1996]; Interman Indus. Products, Ltd.......
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Lawrence v. Kennedy
...over a stated period of time ( see Weissman v. Sinorm Deli, 88 N.Y.2d 437, 444, 646 N.Y.S.2d 308, 669 N.E.2d 242;Bloom v. Lugli, 81 A.D.3d 579, 580, 916 N.Y.S.2d 139). “[A] document comes within CPLR 3213 if a prima facie case would be made out by the instrument and a failure to make the pa......
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Oak Rock Fin., LLC v. Rodriguez
...be the complaint and answer, respectively (see Engel v. Boymelgreen, 80 A.D.3d 653, 655, 915 N.Y.S.2d 596 ; see also Bloom v. Lugli, 81 A.D.3d 579, 580, 916 N.Y.S.2d 139 ).In light of our determination, we need not reach the parties' remaining ...