Scrivener’s Error Does Not Preclude Summary Judgment In Lieu Of Complaint

Posted: May 21, 2025 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Summary Judgment

Scrivener’s Error Does Not Preclude Summary Judgment In Lieu Of Complaint

On April 28, 2025, Justice Joel M. Cohen granted plaintiff’s motion for summary judgment against the borrower and guarantor in PFNGT LLC v. Liquid Capital LLC, Index No. 654595/2024. The Court explained:

Defendants argue that there is an ambiguity in the Note that requires extrinsic evidence to resolve, in which case CPLR 3213 relief would be inappropriate (see Bonds Fin., Inc. v Kestrel Tech., LLC, 48 AD3d 230 [1st Dept 2008]). This is because the Note—in an apparent scrivener’s error—states that the interest rate is “eighteen percent (24%)” (NYSCEF 6 at 1). However, the Court is not required to resort to extrinsic evidence to resolve this issue. The Note makes reference to the Loan Agreement, which unequivocally lists the interest rate as 24%, states that “[t]he Loan shall be evidenced by a secured promissory note…annexed hereto…payable in accordance with the terms hereof” (NYSCEF 6 at 2; NYSCEF 7 §§ 1.1, 1.3 [a]; see also Boland v Indah Kiat Fin. (IV) Mauritius Ltd., 291 AD2d 342 [1st Dept 2002] [“…having conceded that the note is an instrument for the payment of money only and that they failed to make certain payments, defendants are hardly in a position to identify any obligation that, while not apparent from the face of the note, might be required of them by the note's reference to the indenture”] [internal quotations and citations omitted]). Moreover, Defendants nowhere dispute their default or that the rate was in fact 24% (NYSCEF 15). Accordingly, Plaintiff’s motion is granted as against Borrower and Guarantor.

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