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

RO & KE, INC., respondent, v. Jin-Hu STEVENS, appellant.

Decided: April 28, 2009

REINALDO E. RIVERA, J.P., HOWARD MILLER, DANIEL D. ANGIOLILLO, and RUTH C. BALKIN, JJ. Lawrence Ivan Horowitz, Millwood, N.Y., for appellant. William A. Shilling, Jr., P.C., Carmel, N.Y., for respondent.

In an action to recover upon an instrument for the payment of money only, brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendant appeals from an order of the Supreme Court, Putnam County (O'Rourke, J.), dated June 10, 2008, which granted the motion and denied his cross motion to dismiss the action pursuant to CPLR 3211(a)(1), (a)(3), and (a)(10).

ORDERED that the time for the plaintiff to join Hyunik Seo as a party defendant to this action is extended until 30 days after service upon him of a copy of this decision and order.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting the plaintiff's motion for summary judgment in lieu of complaint pursuant to CPLR 3213, and substituting therefor a provision denying the motion, and (2) by adding a provision thereto directing the plaintiff to join Hyunik Seo as a party defendant;  as so modified, the order is affirmed, with costs to the defendant;  and it is further,

 “[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․ 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” (Weissman v. Sinorm Deli, 88 N.Y.2d 437, 444, 646 N.Y.S.2d 308, 669 N.E.2d 242 [internal quotation marks omitted];  see Stallone v. Rostek, 27 A.D.3d 449, 450, 809 N.Y.S.2d 920).   Here, the plaintiff made a prima facie showing of entitlement to judgment as a matter of law by proving the existence of the subject note and nonpayment according to its terms (see Black Rock, Inc. v. Z Best Car Wash, Inc., 27 A.D.3d 409, 409, 809 N.Y.S.2d 918;  James DeLuca, M.D., P.C. v. North Shore Med. Imaging, 287 A.D.2d 488, 488, 731 N.Y.S.2d 388;  A. Bella Food Corp. v. Luigi's Italian Deli, 243 A.D.2d 592, 592, 663 N.Y.S.2d 268).   In response to the plaintiff's prima facie showing, the defendant raised a triable issue of fact regarding the validity of the assignment under which the defendant allegedly assumed the obligations of Hyunik Seo, a nonparty to this action, who was the original borrower on the note.   Therefore, the motion for summary judgment in lieu of complaint should have been denied (see Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 402-403, 165 N.Y.S.2d 498, 144 N.E.2d 387;  Comforce Telecom, Inc. v. Spears Holding Co. Inc., 42 A.D.3d 557, 840 N.Y.S.2d 145;  cf. Millennium Falcon Corp. v. WRD Sales, Inc., 46 A.D.3d 862, 863, 848 N.Y.S.2d 707).

Under the circumstances presented, Hyunik Seo, the original borrower on the note, should have been joined as a party to this action (see CPLR 1001[a];  cf. Friedman v. Friedman, 125 A.D.2d 539, 540-541, 509 N.Y.S.2d 617;  Matter of Brener, 12 A.D.2d 452, 206 N.Y.S.2d 449).

The defendant's remaining contentions are without merit.

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