On March 20, 2025, justice Chan of the New York County Commercial Division issued a decision in Montreux Partners II, LP v. Commissions Import-Export S.A., 2025 NY Slip Op. 50441(U), denying a motion for summary judgment in lieu of complaint because of non-de minimis references to other agreements, explaining:
CPLR 3213 is intended to provide a speedy and effective means of securing a judgment on claims presumptively meritorious. To demonstrate that a written instrument qualifies for summary judgment under CPLR 3213, a plaintiff must prove a prima facie case by the instrument and a failure to make the payments called for by its terms. If it is necessary to look outside the document for proof of the debt, then CPLR 3213 procedure is inapplicable. In other words, the defendant must explicitly acknowledge the indebtedness, and the fact of the debt must be apparent from the agreement. Once the plaintiff submits evidence establishing these elements, the burden shifts to the defendant to submit evidence establishing the existence of a triable issue with respect to a bona fide defense.
Montreux’s motion is denied for failure to establish a prima facie case. Montreux requests recovery under the 2016 and 2021 Letter Agreements, submitting both to establish CMPX’s underlying debt. However, Montreux also relies on (1) two documents purporting to toll the statute of limitations, (2) the Consolidated Note which does not integrate or otherwise include the 2016 and 2021 Letter Agreements, and (3) the Security Agreement which imposes the Note’s default interest rate on the 2016 and 2021 Letter Agreements and secures them with Award 9899.
Summary judgment in lieu of complaint is inappropriate where a note refers to other agreements to define an event of default. Here, the Security Agreement refers to the Note for two of its five definitions of Event of Default, and also imposes the consequences for said default on the 2016 and 2021 Agreements. Given that the Note does not integrate the 2016 or 2021 Agreements, any reference to the Note constitutes outside evidence defeating summary judgment in lieu of complaint. Thus, Montreux failed to meet its prima facie burden.
Moreover, the fact that this complex web of cross-references relies on the two tolling agreements may also constitute more than a mere de minimis deviation from the face of the document. The tolling agreements are necessary to show that Montreux did not lose its right to enforce the underlying debt. Montreux and CMPX largely do not address whether these documents are outside proof, mere de minimis deviations, or otherwise are unrelated to analysis.
(Internal quotations and citations omitted).