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


Decided: July 31, 2007

ROBERT W. SCHMIDT, J.P., FRED T. SANTUCCI, PETER B. SKELOS, and RUTH C. BALKIN, JJ. Duncan, Fish & Vogel, LLP, Smithtown, N.Y. (Richard E. Fish and Keevican Weiss Bauerle & Hirsch, LLC, of counsel), for appellant. Mark E. Goidell, Hauppauge, N.Y., for respondent.

In an action for the payment of money on an instrument, brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), dated June 28, 2006, as denied the motion.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff seeks to recover money due under a series of promissory notes executed in its favor by the defendant.   However, the plaintiff also entered into a “Subordination Agreement” with a third party whereby the defendant's debt to the plaintiff was rendered subordinate to the defendant's debt to that third party.

We agree with the plaintiff that the promissory note sued on was an instrument for the payment of money only, within the meaning of CPRL 3213 (see Weissman v. Sinorm Deli, 88 N.Y.2d 437, 646 N.Y.S.2d 308, 669 N.E.2d 242;  Borg v. Belair Ridge Dev. Corp., 270 A.D.2d 377, 705 N.Y.S.2d 260).   However, given the circumstances of this case, the Supreme Court correctly concluded that there was a triable issue of fact as to whether the plaintiff could maintain this action under the terms of the Subordination Agreement.   Therefore, the motion for summary judgment in lieu of complaint was properly denied (see N & M Plumbing & Heating Corp. v. Cenacle Prop. of L.I., 171 A.D.2d 653, 567 N.Y.S.2d 133;  see also Millerton Agway Coop. v. Briarcliff Farms, 17 N.Y.2d 57, 268 N.Y.S.2d 18, 215 N.E.2d 341;  see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).

The plaintiff's remaining contention is improperly raised for the first time on appeal (see John E. Andrus Mem. Home v. DeBuono, 260 A.D.2d 635, 688 N.Y.S.2d 687).

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