Henry Quentzel Plumbing Supply Co. v. Riggs Plumbing & Heating at 58th Inc.

DECISION AND ORDER  Upon eFiled documents numbered 4-5, 7-9, the plaintiff’s motion for summary judgment in lieu of complaint (CPLR 3213) is denied, as follows. The Claim Against Defendant Riggs Plumbing & Heating & 58th Inc.:The moving affidavit attests that plaintiff is a plumbing wholesaler which sold $58,873.10 worth of plumbing supplies to defendant Riggs Plumbing & Heating @ 58th Inc.; but was never paid. Evidentiary support is exhibited in the form of a “Statement” issued by plaintiff to said defendant, referencing unpaid invoices aggregating the sum of $58,873.10 in outstanding receivables from said defendant. The invoices span the period May to December 2018. However, while plaintiff may very well possess a plenary cause of action for an account stated, based on those invoices and statement, it cannot do so by way of this expedited procedural vehicle of summary judgment in lieu of complaint under CPLR 3213. That is because that abbreviated type of litigation procedure is reserved only for “an instrument for the payment of money only….” (CPLR 3213.) “The prototypical example of an instrument within the ambit of the statute is of course a negotiable instrument for the payment of money — an unconditional promise to pay a sum certain, signed by the maker and due on demand or at a definite time” (Weissman v. Sinorm Deli, Inc., 88 NY2d 437, 444 [1996]; see also, id. [CPLR 3213 deals “‘primarily with some variety of commercial paper in which the party to be charged has formally and explicitly acknowledged an indebtedness.’”). The invoice-referencing statement of account does not qualify as “an instrument for the payment of money only.” Thus, the motion as against defendant Riggs Plumbing & Heating @ 58th Inc. must be denied.The Claim Against Defendant Erika Ribaudo:The moving affidavit attests that defendant Ribaudo is a guarantor of the obligations incurred by defendant Riggs Plumbing & Heating & 58th Inc.; and exhibits an illegible document (as e-filed) which is described in the affidavit as the “personal guarantee” of defendant Ribaudo (Affidavit of Andrew Quentzel