Commercial Division Blog

Posted: September 14, 2022 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Christopher R. Dyess, Joshua Wurtzel, Hillary S. Zilz / Category Summary Judgment

Settlement Agreement Can Be An Instrument for the Payment of Money Only Under CPLR 3213

In an Opinion dated July 25, 2022, in Newco Capital Group VI, LLC v. Teleescrow, Inc. and Tristan Desechenes, Justice Melissa Anne Crane granted plaintiff’s motion for summary judgment in lieu of complaint as to the amount in the settlement agreement.  The Court explained: 

Turning to the merits, under CPLR 3213, a plaintiff may serve a motion for summary judgment in lieu of a complaint when an action is "based upon an instrument for the payment of money only" (see CPLR 3213; Weissman v Sinorm Deli, Inc. and Richard A. Cummings, 88 NY2d 437, 443-444, 669 N.E.2d 242, 646 N.Y.S.2s 308 [1996].  A settlement agreement which contains an "unconditional promise" to pay a particular sum of money constitutes an "instrument for the payment of money only" under CPLR 3213 (Park Union Condominium et al. v 910 Union Street, LLC, 140 AD3d 673, 673-674, 33 N.Y.S.3d 733 [1st Dept 2015]).

Plaintiff demonstrates, prima facie, that pursuant to a settlement agreement and guaranty, defendants agreed unconditionally to pay plaintiffs $1,315,140.30, consisting of one installment of $800,000.00 to be paid by February 7, 2022 and another installment of $515,000.00 to be paid by March 4, 2022 (NYSCEF Doc. No. 5). Plaintiff further demonstrates by the affidavit of Gabriel Benji, Senior ISO Manager of Newco Capital Group LLC [plaintiff s parent company], that defendants have not paid any of the settlement amount (NYSCEF Doc. No. 3, ¶ 25). Plaintiff's motion for summary judgment in lieu of a complaint is granted as to the $1,315,140.30 amount in the settlement agreement and guaranty.

The attorneys at Schlam Stone & Dolan frequently litigate motions for summary judgment in lieu of complaint.  Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such motions.