Effiwatt v. New York City Dept. of Fin. , 2020 NY Slip Op 05448 ( 2020 )

Effiwatt v New York City Dept. of Fin. (2020 NY Slip Op 05448)

Effiwatt v New York City Dept. of Fin.

2020 NY Slip Op 05448

Decided on October 06, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 06, 2020
Before: Friedman, J.P., Webber, Kern, Moulton, JJ.

Index No. 101833/2017 Appeal No. 11954 Case No. 2019-3067

[*1]James Effiwatt, Plaintiff-Appellant,

v

New York City Department of Finance, Defendant-Respondent.

James Effiwatt, appellant pro se.

James E. Johnson, Corporation Counsel, New York (Julie Steiner of counsel), for respondent.

Order, Supreme Court, New York County (Robert R. Reed, J.), entered October 3, 2018, which denied plaintiff's motion for summary judgment in lieu of complaint, unanimously affirmed, without costs.

The document upon which plaintiff relies in this action does not qualify as an instrument for the payment of money only (CPLR 3213; see PDL Biopharma, Inc. v Wohlstadter, 147 AD3d 494 [1st Dept 2017]). Without "defendant's explicit promise to pay a sum of money" and proof of indebtedness, the motion court properly denied the motion for summary judgment in lieu of complaint and directed plaintiff to serve a

summons and complaint (Interman Indus. Prods. v R.S.M. Electron Power, 37 NY2d 151, 155 [1975]).

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 6, 2020