Second Department Holds that Relief Under CPLR 3213 was Unavailable for Claim Under Guaranty of Lease
Print Article- Posted on: Jul 11 2025
Today’s article relates to summary judgment in lieu of complaint pursuant to CPLR 3213,[1] which provides, in relevant part:
When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint. The summons served with such motion papers shall require the defendant to submit answering papers on the motion within the time provided in the notice of motion…. If the motion is denied, the moving and answering papers shall be deemed the complaint and answer, respectively, unless the court orders otherwise….
CPLR 3213 is a procedural device that “is intended to provide a speedy and effective means of securing a judgment on claims presumptively meritorious. In the actions to which it applies, a formal complaint is superfluous, and even the delay incident upon waiting for an answer and then moving for summary judgment is needless.” Interman Industrial Products, LTD v. R.S.M. Electron Power, Inc., 37 N.Y.2d 151, 154 (1975) (citation and internal quotation marks omitted); see also Counsel Financial II LLC v. Bortnick, 214 A.D.3d 1388, 1390 (4th Dep’t 2023).
As expressly stated in the statute, a litigant can benefit from the streamlined procedures of CPLR 3213 if the instrument sued upon is for the payment of money only. Counsel Financial,214 A.D.3d at 1390. “A document comes within CPLR 3213 if a prima facie case would be made out by the instrument and a failure to make the payments called for by its terms.” Weissman v. Sinorm Deli, Inc., 88 N.Y.2d 437, 444 (1996) (quoting Interman, supra) (some citations and internal quotation marks omitted). The Weissman Court noted that the “prototypical example of an instrument within the ambit of the statute is of course a negotiable instrument for the payment of money—an unconditional promise to pay a sum certain, signed by the maker and due on demand or at a definite time.” Id. (citation omitted). It is also “well established that an unconditional guarantee … is an instrument for the payment of money only within the meaning of CPLR 3213.” European American Bank & Trust Co. v. Schirripa, 108 A.D.2d 684, 684 (1st Dep’t 1985). Other types of instruments may fall within the purview of CPLR 3213.
Where resort to extrinsic evidence is necessary to establish the amounts due on an instrument, accelerated judgment pursuant to CPLR 3213 is “inappropriate”. Tradition North America, Inc. v. Sweeney, 133 A.D.3d 53, 54 (1st Dep’t 1987) (promissory notes); see also PDL Biopharma, Inc. v. Wohlstadter, 147 A.D.3d 494, 495 (1st Dep’t 2017). Another interesting issue was addressed in Tradition. Because the repayment of the subject notes was tied to bonuses to which the maker may have been entitled under an employment agreement, the Court held that the notes should not be considered instruments for the payment of money only because the notes could be satisfied by “performing work for his employer”. Id.
These issues were addressed by the Appellate Division, Second Department, on July 9, 2025, in Pearl River Campus, LLC v. Readyscrip, LLC. The plaintiff in Pearl River sought recovery pursuant to CPLR 3213 on a guaranty of a lease agreement. With its motion, the plaintiff provided a copy of the lease, two amendments to the lease, and the guaranty. The guaranty, like most guaranties, provided that “the defendant ‘absolutely and unconditionally guarantees to the plaintiff the timely payment of all amounts that Tenant may at any time owe under the Lease, or any extensions, renewals, or modifications of the Lease.’” (Internal brackets omitted.) The plaintiff also submitted an affidavit averring to the tenant’s default and the amounts allegedly due.
After discussing relevant case law along the lines previously discussed, the Court, in finding that the motion court “properly denied” the motion for summary judgment in lieu of complaint, stated:
To meet its prima facie burden on a motion for summary judgment in lieu of complaint, a plaintiff must prove the existence of the guaranty, the underlying debt and the guarantor’s failure to perform under the guaranty.
Here, a determination of the defendant’s obligations to the plaintiff under the guaranty requires review of outside proof that goes well beyond a mere de minimis deviation from the face of the guaranty. In order to determine the existence and amount of the underlying debt asserted by the plaintiff, the Supreme Court would have been required to examine material outside the lease agreement and make calculations that were not shown by the plaintiff in the affidavit of its operations manager or supporting documents. Since outside proof beyond simple proof of nonpayment was required to determine the defendant’s obligation to the plaintiff, the court properly determined that relief pursuant to CPLR 3213 was unavailable. [Citations and internal quotation marks omitted.]
Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.
This article is for informational purposes and is not intended to be and should not be taken as legal advice.
[1] This BLOG has written dozens of articles addressing numerous aspects of residential mortgage foreclosure. To find such articles, please see the BLOG tile on our website and search for any foreclosure, or other commercial litigation, issue that may be of interest you.
Tagged with: Civil Practice Law and Rules, Guaranty, promissory notes, Summary Judgment, summary judgment in lieu of complaint
