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HOLMES v. ALLSTATE INS.

33 A.D.2d 96 (1969)

Catherine Holmes et al., Respondents, v. Allstate Insurance Company, Appellant

Appellate Division of the Supreme Court of the State of New York, First Department.

November 25, 1969.

Attorney(s) appearing for the Case

Asher Marcus of counsel (Leahey & Johnson, attorneys), for appellant.

Julian Buchbinder for respondents.

TILZER and STEUER, JJ., concur with EAGER, J. P.; McGIVERN, J., dissents in opinion in which MARKEWICH, J., concurs.

EAGER, J. P.

The defendant appeals from an order which granted plaintiffs' motion for summary judgment prior to service of pleadings. But we conclude that this is not an action "based upon an instrument for the payment of money only or upon any judgment" within the meaning of the provisions of CPLR 3213 providing for a "motion for summary judgment in lieu of complaint" in such an action. This was a contention...

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