Commercial Division Blog

Posted: January 3, 2024 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Seth D. Allen, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Summary Judgment

Court Grants Motion For Summary Judgment In Lieu Of Complaint

In a Decision and Order, dated December 6, 2023, in Strecker v. Singlepoint, Inc., Index No. 653850/2023, Justice Joel M. Cohen granted plaintiff’s motion for summary judgment in lieu of complaint pursuant to CPLR § 3213.  The Court explained:    

Plaintiff has established a prima facie case through the submission of the Note, the Notice and the Default (Jinmei Yang v Shang Dai, 193 AD3d 475,476 [1st Dept 2021] citing Zyskind v FaceCake Mktg. Tech., Inc., 101 AD3d 550, 551 [1st Dept 2012]). Defendant has failed to rebut Plaintiffs prima facie showing by establishing that a triable issue of fact exists (Simon v Indus. City Distillery, Inc., 159 AD3d 505, 505 [1st Dept 2018]).

Contrary to Defendant's contention, the fact that the Note was executed in connection with the SPA does not remove it from the ambit of CPLR 3213 (id. citing Atul Bhatara v Futterman, 122 AD3d 509, 510 [1st Dept 2014] [other citations omitted]). Further, "conclusory and unsubstantiated allegations" are insufficient to evade summary judgment (Bank Leumi Tr. Co. of New York v Rattet & Liebman, 182 AD2d 541, 542 [1st Dept 1992] [citations omitted]). Generalized assertions that Plaintiff made representations in the SPA and that the Note is "subordinated and unsecured" are insufficient to demonstrate that any material issue of fact is in dispute.

While summary judgment in lieu of complaint can be a high hurdle given the statutory limitations to its use, this case shows that the mere fact that a note is part of a larger transaction will not preclude application of CPLR § 3213. 

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning a promissory note or summary judgment in lieu of complaint.