Commercial Division Blog

Posted: May 10, 2023 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Seth D. Allen, Joshua Wurtzel, / Categories Commercial, Contracts, Summary Judgment in Lieu of Complaint, Guaranty , Loan

Motion for Summary Judgment in Lieu of Complaint Properly Granted Despite Additional Performance Obligations by Borrower

In a decision dated May 2, 2023, in BBM3, LLC v. James Vosotas, Index No. 652015/21, First Department Case Nos. 2022-01935 and 2023-00050, the Appellate Division, First Department affirmed the decision by the Motion Court, Andrew Borrok, J., granting plaintiff’s motion pursuant to CPLR 3212 for summary judgment in lieu of complaint.  The First Department explained:

Plaintiff satisfied its prima facie burden on its CPLR 3213 motion for summary judgment in lieu of complaint by demonstrating the existence of the guaranties and underlying debts, as well as defendant guarantor’s failure to perform under the guaranties, none of which defendant disputed on the original motion (see Cooperatieve Centrale Raiffeseisen-Boerenleenbank, B.A., “Rabobank Intl.,” N.Y. Branch v Navarro, 25 NY3d 485, 492 [2015]). CPLR 3213 relief was appropriate despite the completion guaranty’s provision requiring some additional performance obligations by the borrower, as the guaranty “include[d] an unconditional obligation to pay” that “required no additional performance by plaintiff as a condition precedent to payment” (iPayment, Inc. v Silverman, 192 AD3d 586, 587 [1st Dept 2021], lv dismissed 37 NY3d 1020 [2021][citations omitted]). Furthermore, nothing in the guaranty rendered defendant’s promise to pay anything but unconditional (id.).

Contact the Commercial Division Blog Committee at if you or a client have questions concerning a CPLR 3212 motion for summary judgment in lieu of complaint.