Summary Judgment Sought Even Though Summary Judgment in Lieu of Complaint at Plaintiff’s Disposal

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Posted on: Dec 31 2025

New York has a unique mechanism—summary judgment in lieu of complaint—that allows a party to recover money upon the default of an instrument for the payment of money only. Under this mechanism, which is found in CPLR 3213, a party must make the motion for summary judgment before filing a complaint. The purpose of CPLR 3213 “is to provide an accelerated procedure where liability for a certain sum is clearly established by the instrument itself.”[1] In such a circumstance, CPLR 3213 can be used when “a formal complaint is superfluous and … the delay incident upon waiting for an answer and then moving for summary judgment is needless.”[2]

“The prototypical example of an instrument within the ambit of [CPLR 3213] 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.”[3] Generally, CPLR 3213 is used to enforce “some variety of commercial paper in which the party to be charged has formally and explicitly acknowledged an indebtedness,” so that “a prima facie case would be made out by the instrument and a failure to make the payments called for by its terms.”[4]

A promissory note may qualify as such an instrument,[5] so long as the plaintiff submits proof of the existence of the note and of the defendant’s failure to make payment.[6] Such proof must be in admissible form sufficient to establish the absence of any material, triable issues of fact.[7]

While CPLR 3213 provides an accelerated method to recover sums due under an instrument for the payment of money only or a judgment, some plaintiffs do not always avail themselves of the device. Main St. Merchant Servs. Inc. v Victorian Rest. & Tavern, LLC, 2025 N.Y. Slip Op. 34664(U) (Sup. Ct., Kings County Dec. 04, 2025), is an example of such a situation.

Main Street Merchant arose out of a contractual dispute between the parties, pursuant to two Purchase and Sale of Future Receivables Agreements (“Agreement l” and “Agreement 2,” respectively, and collectively the “Agreements”).

On March 19, 2024, pursuant to Agreement 1, plaintiff agreed to buy all rights of the Company Defendants’ future receivables.[8] The future receivables covered by Agreement 1 had a face value of $94,430. The purchase amount for those receivables was $71,000. On June 27, 2024, pursuant to Agreement 2, plaintiff agreed to buy all rights of the Company Defendants’ future receivables. The future receivables covered by Agreement 2 had a face value of $58,758. The purchase amount for those receivables was $42,000. Under both Agreement 1 and Agreement 2, August R. Cipully a/k/a August Cipully (“Guarantor”) agreed to guarantee any and all amounts owed to plaintiff from the Company Defendants.

On September 30, 2024, plaintiff filed its complaint, asserting causes of action for breach of contract, breach of the personal guarantee, and unjust enrichment. Plaintiff further asserted that it was entitled to its attorney’s fees in pursuing collection of the amounts owed. On October 28, 2024, defendants answered the complaint. On November 14, 2024, plaintiff moved for summary judgment pursuant to CPLR 3212.

In support of its motion, plaintiff argued that it remitted the purchase price for the future receivables to defendants as agreed upon and fully complied with its obligations and duties under the Agreements. Plaintiff stated that while defendants initially met their obligations under Agreement 1, on September 9, 2024, and September 16, 2024, defendants violated the terms of Agreement 1. Plaintiff further stated that while defendants initially met their obligations under Agreement 2, on August 1, 2024, and September 5, 2024, defendants violated the terms of Agreement 2. Under both Agreements, plaintiff alleged that defendants interfered with plaintiff’s right or ability to collect the Initial Daily Installments set forth in the Agreements by allowing plaintiff to receive four (4) or more rejected ACH transactions by defendants’ bank.

In opposition, defendants argued the following: (1) plaintiff failed to lay a foundation for records purportedly reflecting defendants’ payment history and default, (2) plaintiff failed to offer evidence to prove its performance (i.e., that any amount was actually paid); (3) plaintiff failed to address the fundamental issue regarding what, if any, of the monies in the account from which plaintiff had been drafting remittances constituted actionable “business sales receivables” vis-a-vis the contract; ( 4) plaintiff failed to present evidence to support the allegation that plaintiff is entitled to the default fee; and (5) plaintiff failed to distinguish between the breach of contract claim and the unjust enrichment claim.

The motion court granted plaintiff’s motion.

The motion court found that plaintiff “met its initial burden and prima facie entitlement to summary judgment by submitting copies of the executed Agreements, proof that [p]laintiff performed, and proof that [d]efendants failed to perform resulting in [p]laintiff’s damages.” The motion court also found that the affidavit submitted by plaintiff’s Director of Risk Management constituted further evidence supporting plaintiff’s motion. The motion court explained that the affidavit was based upon personal knowledge and demonstrated that the Director of Risk Management had “access to [p]laintiff’s business records, which [were] kept and maintained in the ordinary course of regularly conducted business activity, including the business records for, and relating to, the [d]efendants.”[9] These records included “the executed Agreements, proof of funding, and the remittance history.”[10] “Because Plaintiff met its initial prima facie burden, by producing the executed Agreements, proof of funding, and proof of [d]efendants’ default under the terms of the Agreements,” said the motion court, “the burden shifted to, and it became incumbent upon [d]efendants to make an ‘evidentiary showing that there exist[ed] genuine, triable issues of fact.’”[11] The motion court held that defendants “failed to raise a triable issue of fact relative to both [p]laintiff’s and [d]efendants’ alleged performance of their respective obligations under the Agreements.”[12]

Regarding the default fee, which the parties provided for as liquidated damages in the Agreements, the motion court held that “the default fees [were] neither unconscionable, nor contrary to public policy and [were] therefore enforceable.”[13]

Takeaway

CPLR 3213 provides an expedited procedure for the recovery of money based on an “instrument for the payment of money only,” such as promissory notes or unconditional guarantees. Instead of filing a complaint, the plaintiff serves a summons and a motion for summary judgment together, allowing the court to decide the case quickly when liability is clear from the instrument itself. This mechanism avoids the delays of pleadings and answers, making it attractive for straightforward monetary claims.

However, CPLR 3213 comes with strict service requirements. The combined summons and motion must be served in the same manner as a summons. The return date must comply with CPLR 320(a), giving defendants the same time to appear as if served with a complaint—usually 20 or 30 days depending on the method of service. These service requirements can be challenging when defendants are out of state, evasive, or corporate entities with unclear registered agents. Any defect in service can invalidate the motion entirely, creating significant risk. For this reason, plaintiffs often choose CPLR 3212 after filing a complaint, which provides more flexibility and time to cure service issues without jeopardizing the case.

Main St. Merchant Servs. Inc. v. Victorian Rest. & Tavern, LLC illustrates this dynamic. In Main St. Merchant, plaintiff filed a complaint and later moved for summary judgment under CPLR 3212. The motion court granted the motion, finding that plaintiff met its prima facie burden by submitting executed agreements, proof of funding, and evidence of defendants’ default. Defendants failed to raise any triable issues of fact, and the motion court upheld the enforceability of the default fee as liquidated damages. This outcome underscores that while CPLR 3213 offers an accelerated process, CPLR 3212 can be a safer route when service or anticipated defenses pose challenges.

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Jeffrey M. Haber 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] G.O.V. Jewelry, Inc. v. United Parcel Serv., 181 A.D.2d 517, 517 (1st Dept. 1992).

[2] Interman Indus. Products, Ltd. v. R.S.M. Electron Power, Inc., 37 N.Y.2d 151, 154 (1975) (citations and internal quotation marks omitted).

[3] Weissman, 88 N.Y.2d at 443-44 (citations, internal quotation marks and footnote omitted).

[4] Interman Indus. Prods., Ltd.,37 N.Y.2d at 154-155 (1975).

[5] “An unconditional guaranty is an instrument for the payment of money only within the meaning of CPLR 3213.” Cooperatieve Centrale Raiffeisen Boerenleenbank, B.A. v. Navarro, 25 N.Y.3d 485, 492 (2015).

[6] See Bonds Fin’l, Inc. v. Kestrel Techs., LLC, 48 A.D.3d 230 (1st Dept. 2008); Seaman-Andwall Corp. v. Wright Machine Corp., 31 A.D.2d 136 (1st Dept. 1968).

[7] See CPLR § 3212(b); Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824 (2014); Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980).

[8] The Company Defendants are: Victorian Restaurant and Tavern, LLC, The Waverly Restaurant, LLC, K.T. Baxter’s, LLC.

[9] Slip Op. at *3.

[10] Id.

[11] Id. (citation omitted).

[12] Id.

[13] Id.

Tagged with: Business Litigation, Commercial Litigation, CPLR 3212, CPLR 3213, Summary Judgment, summary judgment in lieu of complaint