| Ippolito v Family Medicine of Tarrytown & Ossining, LLP |
| 2007 NY Slip Op 10104 [46 AD3d 752] |
| December 18, 2007 |
| Appellate Division, Second Department |
| Elio J. Ippolito, Respondent, v Family Medicine ofTarrytown and Ossining, LLP, et al., Appellants. |
—[*1] Richard Paul Stone, New York, N.Y., for respondent.
In an action to recover on an instrument for the payment of money, brought by motion forsummary judgment in lieu of complaint pursuant to CPLR 3213, the defendants appeal from (1)an order of the Supreme Court, Westchester County (Rudolph, J.), dated January 8, 2007, whichgranted the motion, and (2) so much of an order of the same court, dated March 19, 2007, asdenied their cross motion for leave to renew their opposition to the plaintiff's prior motion forsummary judgment in lieu of complaint.
Ordered that the order dated January 8, 2007 is reversed, on the law, and the motion forsummary judgment in lieu of complaint is denied; and it is further,
Ordered that the appeal from the order dated March 19, 2007 is dismissed as academic, inlight of our determination of the appeal from the order dated January 8, 2007; and it is further,
Ordered that one bill of costs is awarded to the defendants.
"[A] document comes within CPLR 3213 if a prima facie case would be made out by theinstrument and a failure to make the payments called for by its terms . . . Theinstrument does not qualify if outside proof is needed, other than simple proof of nonpayment ora similar de minimis [*2]deviation from the face of thedocument" (Weissman v Sinorm Deli, 88 NY2d 437, 444 [1996] [citations omitted]; see Stallone v Rostek, 27 AD3d449, 450 [2006]).
In this case, the Supreme Court should have denied the plaintiff's motion for summaryjudgment in lieu of complaint because outside proof was needed to determine the amount due tothe plaintiff, if any, under the subject note (see Stallone v Rostek, 27 AD3d 449, 450 [2006]). Miller, J.P.,Ritter, Skelos and Covello, JJ., concur.