MACHIDERA INC v. TOMS

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Supreme Court, Appellate Division, First Department, New York.

MACHIDERA INC., Plaintiff-Respondent, v. Newby TOMS, Defendant-Appellant.

Decided: February 25, 1999

SULLIVAN, J.P., NARDELLI, WALLACH and TOM, JJ. Frank E. Derby, for Plaintiff-Respondent. Jon Y. Arnason, for Defendant-Appellant.

Appeal from order, Supreme Court, New York County (Ira Gammerman, J.), entered November 20, 1997, inter alia, granting plaintiff's motion for summary judgment pursuant to CPLR 3213, deemed, pursuant to CPLR 5501(c), an appeal from the ensuing judgment of the same court and Justice, entered April 7, 1998, entitling plaintiff to recover from defendant the principal sum of $2,200,000, and as so considered, the judgment, unanimously affirmed, with costs.

 The agreements sued upon are clearly instruments for the payment of money only, since repayment of the amounts owed is not conditional, and is required at a fixed maturity date (see, Weissman v. Sinorm Deli, Inc., 88 N.Y.2d 437, 443-444, 646 N.Y.S.2d 308, 669 N.E.2d 242).   Contrary to defendant's claim, restrictions upon usurious loans are not applicable to the loans here at issue since the amounts involved were over $250,000 (see, General Obligations Law § 5-501[6][a] ).   Finally, the nail and mail service upon defendant complied with CPLR 308(2), and, in any event, the second service mooted any questions concerning service irregularities.

MEMORANDUM DECISION.