Summary Judgment In Lieu Of Complaint Granted Upon Renewal

Posted: August 25, 2025 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Summary Judgment in Lieu of Complaint, Renewal/Reconsideration/Reargument, Forum Selection Clause

Summary Judgment In Lieu Of Complaint Granted Upon Renewal

On July 14, 2025, Justice Margaret A. Chan granted summary judgment upon renewal of plaintiff’s application to enforce a $10,000,000 promise of payment by defendant Joseph S. Cohen as an instrument for the payment of money only under CPLR 3213. The case is DKSJ, LLC v. Cohen, Index No. 653100/2024.

Justice Chan had earlier denied the same summary judgment motion by plaintiff because the instrument sued upon (the “Put Agreement”) had a federal forum selection clause. DKSJ’s argument that “the forum selection clause should not apply because the federal district court did not have subject matter jurisdiction” was premature: While “forum selection clauses may be set aside if a plaintiff can show that ‘enforcement would be unreasonable and unjust or that . . . a trial in the contractual forum would be so gravely difficult and inconvenient that the challenging party would, for all practical purposes, be deprived of his or her day in court’”, that should not be considered “unless the designated court already had an opportunity to ‘resolve issues regarding its own jurisdiction.’”. Slip op., p. 4 (citations omitted.)

After a federal case that DKSH then brought was dismissed for lack of subject matter jurisdiction, DKSH moved to renew in state court. Noting that her prior order had “denied summary judgment in lieu of complaint without prejudice to allow the District Court to rule on its own jurisdiction,” Justice Chan found that, in light of the District Court’s finding that it lacked jurisdiction, “the forum selection clause may be set aside . . .” and renewal was therefore appropriate. Slip op., p. 6. Summary determination under CPLR 3213 was warranted because:

The Put Agreement is an instrument for payment of money only and calls for the unconditional repayment and buyout of plaintiff’s equity upon a demand notice from plaintiff . . . The Put Agreement further states that no other conditions are necessary to activate the right (Put Agreement§ 1 b]). The amount requested in the Put Agreement is a definite sum (the $10,000,000 price plus compound interest accrued at 8% per month) due upon demand at the time specified in the Put Notice, as well as reasonable attorneys' fees and costs (id §§ 1 [a], 15). As proof of nonpayment, plaintiff submits its January 30, 2023 Put Notice and the three follow-up letters (NYSCEF #s 7·10). Plaintiff also submits an affidavit from its manager Katz stating that defendant has failed to pay . . ..

Slip op., p. 7. This was sufficient to establish DKSJ’s prima facie entitlement to summary judgment, which Cohen failed to rebut. Id., pp. 7-9.

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning summary judgment under CPLR 3213, renewal or the effect of forum selection clauses