Commercial Division Blog

Posted: May 22, 2024 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Summary Judgment

Court Denies Unopposed Motion for Summary Judgment in Lieu of Complaint

On April 19, 2024, Justice Margaret A, Chan denied an unopposed motion for summary judgment in lieu of complaint.  The plaintiff in RS E Orange, LLC v. Proudliving Companies, LLC et ano., Index No. 655013/2023, sought just under $4 million from defendants Proudliving and Andrew Brown under a guaranty agreement.  The Court explained: 

CPLR 3213 permits "actions based upon an instrument for the payment of money only to be commenced with a motion for summary judgment rather than a complaint" (Banco Popular N. Am. v Victory Taxi Mgt., Inc., 1 NY3d 381, 383 [2004]). To establish prima facie entitlement to summary judgment in lieu of complaint on a promissory note, a plaintiff must show that the instrument sued upon contains "an unconditional promise to pay a sum certain ... due on demand or at a definite time" (Weissman v Sinorm Deli, Inc., 88 NY2d 437, 444 [1996]). To establish such entitlement on a guaranty, the plaintiff must show that the sum certain is "readily ascertainable," whether or not it appears directly on the face of the guaranty (see Bank of Am., N.A. v Lightstone Holdings, LLC, 32 Misc 3d 1244(A), *4 [Sup Ct, NY County, 2011], citing Manufacturers Hanover Tr. Co. v Green, 95 AD2d 737, 737 [1st Dept 1983]).

An instrument does not qualify for CPLR 3213 treatment "if outside proof is needed, other than simple proof of nonpayment or a similar de minimis deviation from the face of the document" (Weissman, 88 NY2d at 444; see Maglich v Saxe, Bacon & Bolan, P.C., 97 AD2d 19, 21 [1st Dept 1983] ["(w)here proof outside the instrument is necessary to establish the underlying obligation, the CPLR 3213 procedure does not apply"]). CPLR 3213 treatment is not available where plaintiff relies exclusively on conclusory allegations to explain how the amount due was calculated (HSBC Bank USA v IPO, LLC, 290 AD2d 246, 246 [1st Dept 2002]).

Here, the amount specified by plaintiff ($3,999,272.00) is not "readily ascertainable" on the face of the Guaranty or the Agreement. For instance, nowhere in the documents is there a specific stipulation that defendant owes $3,999,272.00 (see, e.g., Bank of Am., NA. v Solow, 59 AD3d 304, 305 [1st Dept 2009] [guaranty stipulated to sum of $15,910,000]) or a cap on recovery that would be applicable to these facts (see, e.g., Lightstone Holdings, 32 Misc 3d at *4 [guarantor liability on $1.8 billion loan was capped at $100 million]). All of plaintiffs statements about the $3,999,272.00 owed are conclusory, with nothing in the record showing how the amount due was calculated (see HSBC, 290 AD2d at 246 ["the prima facie case for

such relief [under CPLR 3213] requires documentary evidence or an explanation of how the indebtedness is calculated, other than in the form of mere conclusory allegations"]). The only places this amount is mentioned is in plaintiff’s memorandum of law and in the very last paragraph of the Starr affidavit (see NYSCEF # 3 ¶ 25).

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