Commercial Division Blog

Posted: April 2, 2021 / Categories Commercial, Judgment and Collection

Court Grants Summary Judgment In Lieu of Complaint Based on Settlement Agreement

On March 17, 2021, Justice Borrok of the New York County Commercial Division issued a decision in Wilkins Media, LLC v. Oxigen Beverages, Inc., 2021 NY Slip Op. 30847(U), granting summary judgment in lieu of complaint based on a settlement agreement, explaining:

Pursuant to CPLR § 3213, a motion for summary judgment in lieu of complaint may only be granted when the action is based on an instrument for the payment of money. To meet its prima facie burden on such a motion, the plaintiff must prove that there was an unconditional promise to pay a sum certain and the defendant's failure to pay. Once a prima facie showing is made, the defendant must present admissible evidence that raises a triable issue of fact to preclude liability.

The Plaintiff's motion for summary judgment in lieu of complaint must be granted. The parties executed a binding contract for the payment of money, and the Defendants failed to pay or otherwise raise a material issue of fact. The Defendants' argument that the parties agreed to an oral modification of the Settlement Agreement in June 2019 fails because the Settlement Agreement specifically states that any prior agreements between the parties were void and unenforceable. In fact, the Defendants confirmed that the Plaintiff could expect payment in full. For the avoidance of doubt, Jon Selame's affidavit should not be disregarded. The omission of a certificate of conformity is a mere irregularity rather than a fatal defect that was corrected on reply and accepted nunc pro tunc. Thus, the Plaintiff's motion for summary judgment in lieu of complaint is granted.

(Internal quotations and citations omitted).

Cases in the Commercial Division of the New York courts usually involve a motion to dismiss at the outset and then a motion for summary judgment at the close of discovery, so such motions are a big part of our practice. The decision above is about a special procedure in New York for quickly resolving claims relating to unpaid notes or similar documents allowing the plaintiff to move for summary judgment at the beginning of an action. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have questions about seeking or opposing a motion for pre-trial dismissal or judgment of a commercial lawsuit.