GUELE v. SCAIANO

Per Curiam.

The remedy of summary judgment in lieu of complaint is available only in an action "based upon a judgment or instrument for the payment of money only" (CPLR 3213). The instant suit to recover an escrow deposit, under the terms of a contract to purchase a house, does not come within the purview of the quoted language ( Embassy Ind. v. S M L Corp., 45 Misc.2d 91).

The judgment and order should be unanimously reversed, with $10 costs to defendant, motion denied, and plaintiffs' time to serve a complaint is extended until 10 days after service of a copy of the order hereon.

Concur — McDONALD, P.J., GROAT and RINALDI, JJ.

Judgment and order reversed, etc.