By order to show cause filed on April 20, 2007, plaintiff moves for an order declaring certain cash advances provided to him by the defendants to be usurious loans. Plaintiff also seeks an order: reducing the rate of interest accruing on each cash advance in question, voiding the defendants' alleged liens on the plaintiff's settlement proceeds and awarding the plaintiff attorney's fees and costs in connection with the instant motion.

On May 18, 2007, the parties stipulated to the following. Defendants were given until June 8, 2007 to submit opposition to the instant order to show cause, plaintiff's reply was to be served by June 21, 2007 and oral argument was adjourned to June 22, 2007. They further agreed that all interest due, if any, on the transactions in question were to be stayed from the date of the filing of the order to show cause until resolution of the matter.

By notice of cross motion filed on June 19, 2007, defendants Cambridge Management Group, LLC (hereinafter CMG) and New Amsterdam Capital Partners LLC, (hereinafter NAC) jointly move for an order compelling arbitration of the plaintiff's claim of usury and staying all proceedings pending arbitration pursuant to CPLR §7503(a). Additionally, they seek to arbitrate their claim that plaintiff's attorneys, Jeffrey Feldman and Daniel Kim, should be disqualified from further representation of the plaintiff and that the proceeds of plaintiff's settlement be transferred to a neutral party or the court. Plaintiff opposes the cross motion.

On April 20, 2007, plaintiff commenced the instant action by filing a summons and verified complaint and order to show cause with the Kings County Clerk's office. Simultaneously, plaintiff also filed a request for judicial intervention in accordance with (22 NYCRR §202.6). The complaint alleges twenty allegations in fact in support of an action for a declaratory judgment. Plaintiff alleges that the defendants provided him with four cash advances totaling four thousand dollars ($4,000.00) and that the transactions were an usurious loan. The affirmation of plaintiff's counsel denominated the instant motion as an action based upon an [*2]instrument for the payment of money only Neither defendant has filed an answer to the complaint.

Plaintiff's motion papers consist of two affirmations from his attorney, Robert J. Feldman, and five annexed exhibits. The first affirmation is in support of the emergency consideration of the temporary restraining order sought in the order to show cause. Exhibit A is a summons and complaint for an action brought in the New York State Supreme Court of Bronx County, bearing index number 23964/00, entitled Daryl Rivers against The New York City School Construction Authority and The City of New York. Exhibit B is a cover letter form CMG to the plaintiff dated September 12, 2002, and a written agreement pertaining to a cash advance by CMG to the plaintiff in the amount of $1,000.00. Exhibit C is a written agreement dated November 25, 2003 pertaining to a $1,000.00 payment by NAC to plaintiff. Exhibit D is a cover letter dated September 7, 2004, sent by CMG to the plaintiff. The cover letter referenced the attached written agreement and CMG's cash advance to the plaintiff in the amount of $1,000.00. Exhibit E is a facsimile transmission dated December 8, 2006 from CMG to Daniel Kim, Esq., plaintiff's former counsel, setting forth their computations of the amount they are due if paid by certain dates. Exhibit F is a letter from Lawmax denominated as a claim status report. Exhibit G is plaintiff's summons and complaint seeking a declaratory judgment that CMG and NAC's transactions were usurious. Exhibit H is Justice Ira B. Warshawsky's decision and order in the matter of Juan Vincente Echeverria v. Estate of Marvin L. Linder, et al, index no. 018666/2002. Exhibit I is plaintiff's affidavit.

CMG and NAC's cross motion consists of two identical affirmations of counsel followed by eight annexed exhibits. Exhibit A is a demand for arbitration by NAC. Exhibit B is a demand for arbitration by CMG. Exhibit C is a document signed by the plaintiff and notarized on August 28, 2001 denominated "Plaintiff's Irrevocable Grant of Lien, Assignment of Proceeds and Lien Payment Instructions." The document purports to grant an irrevocable lien to CMG in the amount of $12,800.00 on the settlement, verdict of judgment proceeds for the aforementioned action bearing index number 23964/00.Exhibit E is similar document to exhibit C with the exception that it is signed on September 12, 2002 and the lien amount to CMG is in the amount of $19,200.00. Exhibit E is a written agreement dated September 7, 2004, between CMG and plaintiff pertaining to a cash advance of $1,000.00. Exhibit F is a written agreement, dated November 25, 2003 pertaining to a $1,000.00 payment by NAC to plaintiff. Exhibit G is Justice Lewis Bart Stone s decision and order in the matter of Oce Business Services, Inc. v. Christensen, index no. 116720/04. Exhibit H is a press release from the New York State Attorney General's Office. Defendants also submitted three memoranda of law in support of the cross motion and in opposition to the order to show cause and two additional reply memorandum.

McKinney's CPLR Rule 2214 provides as follows:

Motion papers; service; time. (a) Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded.

CPLR§ 3213 provides in pertinent part as follows.

Motion for summary judgment in lieu of complaint. When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint. The summons served with such motion papers shall require the defendant to submit answering papers on the motion within the time provided in the notice of motion.

Contrary to the requirements of CPLR §2214, plaintiff did not set forth the procedural vehicle used to bring the instant order to show. The supporting affirmation of plaintiff's counsel, however, describes the instant motion as an action based upon an instrument for the payment of money only. Although not specifically cited, it is apparent that plaintiff is invoking the procedural vehicle of CPLR §3213 to bring the order to show cause.

A CPLR §3212 application is not an ordinary motion. It is an action and as such it can't be brought on by the device of an order to show cause.(Bullard v. Bullard Orchards, Inc., 153 Misc 2d 136 [Sup. Ct. Saratoga County 1992]). Plaintiff has therefore used the wrong procedural device to bring the matter to court.

The court turns to the question of whether the procedural device of CPLR §3213 is appropriate at all for the underlying action. The threshold question is whether any of the four cash advances referenced in plaintiff's motion papers are instruments for the payment of money only. CPLR §3213 was a procedural reform that, for the limited matters within its embrace, melded pleading and motion practice into one step, allowing a summary judgment motion to be made before issue was joined (compare CPLR §3212) (Weissman v. Sinorm Deli, Inc., 88 NY2d 437, 443 [1996]. Its purpose was to provide quick relief on documentary claims so presumptively meritorious that "a formal complaint is superfluous, and even the delay incident upon waiting for an answer and then moving for summary judgment is needless" (1st Prelim Report of Advisory Comm on Practice and Procedure, 1957 NY Legis Doc No. 6 [b], at 91). The statute provides: "When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint"(id ).

A document comes within CPLR §3213 if a prima facie case would be made out by the instrument and a failure to make the payments called for by its terms (Russo v. O'Meara, 300 AD2d 563 [2nd Dept 2002]; citing Weissman v. Sinorm Deli, Inc., supra). The instrument does not qualify if outside proof is needed, other than simple proof of nonpayment or a similar de minimis deviation from the face of the document" (Russo v. O'Meara, supra 300 AD2d 563).

Where the instrument requires something in addition to defendant's explicit promise to pay a sum of money CPLR §3213 is unavailable (Russo v. O'Meara, supra 300 AD2d 563).

Here the four instruments call for plaintiff's obligation to pay the defendants if plaintiff resolves his lawsuit by a cash settlement or by receipt of a monetary verdict or judgment. Proof that this condition is met, goes beyond merely the instrument and a defendants' demands for payment.

Furthermore, plaintiff's complaint alleges that he is a debtor and that he seeks, among other things, to reduce the rate of interest charged by the defendants on the loans in question. [*4]The nature of the cause of action and the remedy sought render the summary remedy of CPLR §3213 unavailable to plaintiff. It is noted that the claim of usury is usually asserted by a debtor as a defense in an answer to a complaint brought by a creditor. Plaintiff's inappropriate use of the CPLR §3213 vehicle requires its denial and either outright dismissal of the proceeding or conversion of the proceeding into an action.(see generally, McKinney's Practice Commentaries to CPLR §3213 C3213:11 page 420-421, by David Siegel). For the sake of judicial economy, the court chooses conversion. However, inasmuch as plaintiff commenced the matter by using the wrong procedural device of an order to show cause, rather than deeming the defendants served with the summons and complaint already attached to the motion, the court directs plaintiff to re-serve the summons and complaint within twenty days of entry of this order. The court deems the matter commenced as of the date of the filing of the instant order to show cause.

Defendants did not oppose plaintiff's use of the procedural vehicle of CPLR§ 3213. Nor did they raise the contention that plaintiff's motion asserts an affirmative defense before defendants have had a chance to answer the complaint. Also, contrary to the requirements of CPLR §2214, defendants offered no legal authority to support the submission of the issue of disqualification of plaintiff's present and former counsel to either the court or to arbitration. Similarly, they offered no legal authority to support the request to arbitrate the transfer of plaintiff's settlement funds.

Instead they opposed the motion by cross moving pursuant to CPLR §7503(a) for an order compelling arbitration of plaintiff's claim of usury, their claim that plaintiff's counsel should be disqualified and their claim that plaintiff's settlement proceeds should be transferred to the court or a neutral party. Defendants also seek a stay of all proceedings pending the outcome of the arbitration. The court denies the application without prejudice to renew after issue has been joined by the defendants answer to the newly served summons and complaint.

In determining whether to renew the request, defendants should consider the following. As for the form of the agreement, it is undisputed law that a usurious agreement is invalid regardless of the form it takes and regardless of the rules governing integrated agreements. It is always possible to show that any transaction and the documents which are a part of it are illegal and unenforceable as a usurious transaction (Durst v. Abrash, 22 AD2d 39, 42 [1st Dept. 1964]; citing Restatement, Contracts §229, comment b; 529). In such an inquiry, the issue is not the interpretation of the language used but what are the facts behind the facade of language (Durst v. Abrash, 22 AD2d 39, 42 [1st Dept. 1964])

The Appellate Divison, First Department in Durst, supra, held that the determination of whether an agreement which contains an arbitration clause is a usurious loan is to be determined by the court as a threshold matter and is not arbitrable. Furthermore, the issue of attorney disqualification similarly involves interpretation and application of the Code of Professional Responsibility and Disciplinary Rules, as well as the potential deprivation of counsel of the client's choosing and cannot be left to the determination of arbitrators selected by the parties (Biderman v. Industrial Licensing, Inc. v. Avmar, 173 Ad2d 401 [1st Dept 1991]; see also Glauber v. Glauber, 192 AD2d 194 [2nd Dept 1993]).

Plaintiff's motion and defendants' cross motion are denied without prejudice to renew after issue is joined.

The foregoing constitutes the decision and order of this court. [*5]

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J.S.C.