Embassy Industries, Inc. v. S M L Corp.

The remedy of summary judgment in lieu of a complaint is available only in an action ‘ ‘ based upon a judgment or instrument for the payment of money only ” (CPLR 3213). The instant suit to recover security deposited under the terms of a lease does not come within the purview of the quoted language.

The judgment and order should be unanimously reversed, with $10 costs to defendants, motion denied and plaintiff’s time to serve a complaint is extended until 10 days after service of a copy of the order hereon.

■Concur — Di Giovanna, Benjamin and Margett, JJ.

Judgment and order reversed, etc.