Zunz v. National Surety Corp.

The question to be determined on this motion for summary judgment in lieu of a complaint (CPLR 3213) is whether an action on an undertaking to secure a warrant of attachment, subsequently vacated, is based upon an instrument for the payment of money only.

The defendant surety company contends that plaintiff cannot proceed without service of a summons and complaint and must move under CPLR 3212.

The facts are that the defendant furnished an undertaking in the amount of $15,000 for a warrant of attachment in a Federal court action. The warrant was vacated. The plaintiff, who was the defendant in…