Appeal from an order of the District Court of Nassau County, First District (Martin J. Massel, J.), entered October 28, 2004. The order denied plaintiffs' motion for summary judgment in lieu of complaint and dismissed the action.

Order unanimously modified by striking the provision thereof dismissing the action and substituting therefor the provision that the moving and answering papers are deemed the complaint and answer, respectively; as so modified, affirmed without costs.

Plaintiffs moved for summary judgment in lieu of complaint pursuant to CPLR 3213 seeking judgment in the sum of $12,500 on a promissory note executed by defendants in the principal sum of $30,000 at a yearly interest rate of 12%. The court below denied the motion on the ground that the action was not based on an instrument for the payment of money only (see CPLR 3213) since something additional was required to establish plaintiffs' claim.

Generally, a document comes within CPLR 3213 if it is "based upon an instrument for the payment of money only" (Weissman v Sinorm Deli, 88 NY2d 437, 444 [1996]; see Hirsch v Rifkin, 266 AD2d 293 [1990]). The promissory note in question expressly provides that it was secured by a stock pledge agreement and that said agreement governed in the event of any conflicts between the note and the stock pledge agreement. Accordingly, the motion for summary judgement was properly denied by the court below. However, the order should be modified by striking the portion thereof which dismissed the action. The action is reinstated and the moving and answering papers are deemed the complaint and answer, respectively (see CPLR [*2]3213).
Decision Date: January 05, 2006