| Premium Assignment Corp. v Utopia Home Care, Inc. |
| 2009 NY Slip Op 00364 [58 AD3d 709] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Premium Assignment Corporation, Appellant, v UtopiaHome Care, Inc., Respondent. |
—[*1] Ahern & Ahern, Kings Park, N.Y. (Dennis P. Ahern of counsel), 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 plaintiff appeals from anorder of the Supreme Court, Suffolk County (Spinner, J.), dated July 3, 2008, which denied itsmotion.
Ordered that the order is reversed, on the law, with costs, the motion is granted, and thematter is remitted to the Supreme Court, Suffolk County, for a hearing on the amount of theattorney's fee to be awarded to the plaintiff, and thereafter for entry of an appropriate judgment.
The plaintiff made a prima facie showing of its entitlement to summary judgment pursuant toCPLR 3213 by establishing the existence of an instrument for the payment of a sum certain andthe defendant's failure to make the payments called for by its terms (see Juste v Niewdach, 26 AD3d416 [2006]). In opposition, the defendant failed to raise a triable issue of fact or ameritorious defense (see Black Rock,Inc. v Z Best Car Wash, Inc., 27 AD3d 409 [2006]). Contrary to the defendant'scontention, the instrument at issue did not require any additional performance on the part of theplaintiff as a condition precedent to repayment, nor did it require the plaintiff to pursue its claimagainst the defendant's insurer (see Afco Credit Corp. v Boropark Twelfth Ave. Realty Corp.,187 AD2d 634 [1992]).[*2]
Since, the instrument did not provide for a sum certainwith respect to the recovery of an attorney's fee in the event of a default in payment on theinstrument, a hearing must be held to determine the amount of such award (see Borg v BelairRidge Dev. Corp., 270 AD2d 377, 378 [2000]). Prudenti, P.J., Spolzino, McCarthy andLeventhal, JJ., concur.