STEPHEN DIVITO PLAINTIFF APPELLANT v. ZASTAWRNY LLC DEFENDANT RESPONDENT

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Supreme Court, Appellate Division, Fourth Department.

STEPHEN DIVITO, PLAINTIFF–APPELLANT, v. ZASTAWRNY LLC, DEFENDANT–RESPONDENT.

CA 14–01668

Decided: June 19, 2015

PRESENT:  SCUDDER, P.J., SMITH, SCONIERS, VALENTINO, AND DEJOSEPH, JJ. CHENEY & BLAIR, LLP, GENEVA (DAVID D. BENZ OF COUNSEL), FOR PLAINTIFF–APPELLANT. THE WOLFORD LAW FIRM LLP, ROCHESTER (JAMES S. WOLFORD OF COUNSEL), FOR DEFENDANT–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  By motion for summary judgment in lieu of complaint (see CPLR 3213), plaintiff moved for judgment in the amount of $50,000, plus interest, pursuant to an agreement for the purchase of a chiropractic business.   Contrary to plaintiff's contention, we conclude that Supreme Court properly denied the motion on the ground that plaintiff failed to establish that the agreement qualifies as “an instrument for the payment of money only” (CPLR 3213).   “Where, as here, an agreement ‘requires something in addition to [an] explicit promise to pay a sum of money, CPLR 3213 is unavailable’ “ (Whitley v. Pieri, 48 AD3d 1175, 1176, quoting Weissman v. Sinorm Deli, 88 N.Y.2d 437, 444).   In light of our determination, we do not address plaintiff's remaining contention.

Frances E. Cafarell

Clerk of the Court