On February 18, 2022, Justice Ostrager of the New York County Commercial Division issued a decision in Fisher v. Lovaro LLC, 2022 NY Slip Op. 30565(U), holding that a revolving credit agreement was not an instrument for the payment of money only for CPLR 3213 purposes, explaining:
The Credit Agreement covers a revolving line of credit for a total principal amount of $998,396.41. This is not an instrument for the payment of money only because it requires, among other things, proof of the amounts drawn on the credit line and proof that the defendant received such sums.
The language in the Credit Agreement is vague; it allowed defendant to indebt itself to plaintiffs for the total principal amount listed but does not indicate whether defendant has actually done so. The line of credit does not contain an unconditional promise to repay $998,396.41. The promise to repay that amount is conditioned upon defendant actually drawing that amount. In support of the motion, plaintiff Stephen Miller submitted an affidavit, but like the Credit Agreement, the affidavit is vague and fails to establish proof that plaintiff had drawn the amount plaintiff seeks to recover.
Further, plaintiffs seek relief under the Credit Agreement beyond the recovery of the monetary amount allegedly loaned to defendant. Plaintiffs also seek delivery of the collateral used to secure the loan, an injunction, and an inquest hearing to determine the full extent of the collateral assets, among other things. All of the requests for relief relating to the Credit Agreement do not qualify for CPLR § 3213 relief.
(Internal quotations and citations omitted).