| Ro & Ke, Inc. v Stevens |
| 2009 NY Slip Op 03501 [61 AD3d 953] |
| April 28, 2009 |
| Appellate Division, Second Department |
| Ro & Ke, Inc., Respondent, v Jin-Hu Stevens,Appellant. |
—[*1] William A. Shilling, Jr., P.C., Carmel, N.Y., for respondent.
In an action to recover upon an instrument for the payment of money only, brought bymotion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendantappeals from an order of the Supreme Court, Putnam County (O'Rourke, J.), dated June 10,2008, which granted the motion and denied his cross motion to dismiss the action pursuant toCPLR 3211 (a) (1), (3) and (10).
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthe plaintiff's motion for summary judgment in lieu of complaint pursuant to CPLR 3213, andsubstituting therefor a provision denying the motion, and (2) by adding a provision theretodirecting the plaintiff to join Hyunik Seo as a party defendant; as so modified, the order isaffirmed, with costs to the defendant; and it is further,
Ordered that the time for the plaintiff to join Hyunik Seo as a party defendant to this actionis extended until 30 days after service upon him of a copy of this decision and order.
"[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 deviation from the face of the document" (Weissman v SinormDeli, 88 NY2d 437, 444 [1996] [internal quotation marks [*2]omitted]; see Stallone v Rostek, 27 AD3d 449, 450 [2006]). Here, theplaintiff made a prima facie showing of entitlement to judgment as a matter of law by provingthe existence of the subject note and nonpayment according to its terms (see Black Rock, Inc. v Z Best Car Wash,Inc., 27 AD3d 409, 409 [2006]; James DeLuca, M.D., P. C. v North Shore Med.Imaging, 287 AD2d 488 [2001]; A. Bella Food Corp. v Luigi's Italian Deli, 243AD2d 592, 592 [1997]). In response to the plaintiff's prima facie showing, the defendant raised atriable issue of fact regarding the validity of the assignment under which the defendant allegedlyassumed the obligations of Hyunik Seo, a nonparty to this action, who was the original borroweron the note. Therefore, the motion for summary judgment in lieu of complaint should have beendenied (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 402-403 [1957];Comforce Telecom, Inc. v SpearsHolding Co., Inc., 42 AD3d 557 [2007]; cf. Millennium Falcon Corp. v WRD Sales, Inc., 46 AD3d 862,863 [2007]).
Under the circumstances presented, Hyunik Seo, the original borrower on the note, shouldhave been joined as a party to this action (see CPLR 1001 [a]; cf. Friedman vFriedman, 125 AD2d 539, 540-541 [1986]; Matter of Brener, 12 AD2d 452 [1960]).
The defendant's remaining contentions are without merit. Rivera, J.P., Miller, Angiolillo andBalkin, JJ., concur.