Order, Supreme Court, New York County, entered August 1, 1975, affirmed. Respondent shall recover of appellant $60 costs and disbursements of this appeal. In 1958, plaintiff-respondent, a Cuban national resident there, paid nearly a quarter million dollars to a branch maintained by defendant-appellant bank in Cuba, in exchange for certificates of deposit, refundable to the depositor only upon "submission of this document” a year later. Though the currency deposited was referred to as "national currency” nothing was said about what kind of currency was to be refunded, pesos or other, nor was any place specified for redemption. Plaintiff departed Cuba with the certificates ahead of the coming to power of the Castro government, which thereafter expropriated the accounts of the local branch of defendant bank and also forbade export of Cuban currency. Years after issuance of the certificates, plaintiff presented them here to defendant bank and requested payment. It was refused, defendant claiming that acts of State by Cuba in confiscating the accounts of a Cuban citizen and in forbidding the export of Cuban currency had the effect of extinguishing the debt and that, in any event, the Cuban branch being completely independent of defendant bank, presentment here did not involve refusal by the Cuban branch to pay. A proceeding based upon instruments for the payment of money only, brought on by motion for summary judgment, resulted in denial of the motion, as well as of the cross motion to dismiss. As observed at Special Term, there are issues of fact raised not alone by the omissions in the documents as to *795place of payment and the nature thereof but also as to plaintiffs status visa-vis the Cuban government when it committed the dictatorial acts, said to be in accordance with its laws, of claimed expropriation of the debt owed to plaintiff, as well as of the currency with which it might have been paid. The question of plaintiffs status alone is sufficient at this juncture to preclude decision as to whether the claimed seizures were permissible acts of a sovereign State upon which defendant appears to rely in rejection of plaintiffs claim. (Cf. French v Banco Nacional de Cuba, 23 NY2d 46.) These issues alone are sufficient to defeat defendant’s cross motion for summary judgment. Concur—Stevens, P. J., Markewich and Kupferman, JJ.; Birns and Capozzoli, JJ., dissent in the following memorandum by Capozzoli, J.: