On April 24, 2024, the Second Department issued a decision in Kitchen Winners NY, Inc. v. Triptow, 2024 NY Slip Op. 02181, holding that a plaintiff was not entitled to summary judgment in lieu of complaint because there were questions of fact beyond simple proof of nonpayment, explaining:
Pursuant to CPLR 3213, ‘[w]hen 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. Generally, a guaranty is an instrument that qualifies for relief pursuant to a motion for summary judgment in lieu of a complaint. However, the instrument does not qualify if outside proof is needed, other than simple proof of nonpayment or a similar de minimis deviation from the face of the document.
Here, the Supreme Court erred in granting the plaintiff’s motion for summary judgment in lieu of complaint, as the plaintiff failed to show that the guaranty met the threshold requirement of CPLR 3213. To determine the defendants’ obligations to the plaintiff, more than simple proof of nonpayment or a mere de minimis deviation from the face of the guaranty is required. The guaranty references a deposit amount which differs from the amount demanded by the plaintiff in this proceeding, and, moreover, the guaranty does not establish the date upon which the defendants’ repayment obligation is triggered. Even assuming without deciding that the purchase and sales contract submitted with the plaintiff’s motion constitutes the underlying “PI” which is referenced in the guaranty, that contract sets forth a different deposit amount than the one set forth in the guaranty and, therefore, also does not conclusively establish the defendants’ repayment obligation. Since outside proof beyond simple proof of nonpayment is required to determine the defendants’ obligation to the plaintiff, relief pursuant to CPLR 3213 is unavailable.
(Internal quotations and citations omitted).