On October 10, 2025, Justice Bannon of the New York County Commercial Division issued a decision in CMTG JPM Term Funding LLC v. Chetrit, 2025 NY Slip Op. 33991(U), denying summary judgment in lieu of complaint on two guaranties because the amount owed was not clear on the face of the guaranties, explaining:
A plaintiff may seek relief under CPLR 3213 when the action is based upon an instrument for the payment of money only. Where the instrument requires something in addition to defendant’s explicit promise to pay a sum of money, CPLR 3213 is unavailable. That is, any outside proof other than simple proof of payment and default exceeds the permissible use of extrinsic proof on a CPLR 3213 motion. Therefore, a document does not qualify for CPLR 3213 treatment if the court must consult other materials besides the bare document and proof of nonpayment, or if it must make more than a de minimus deviation from the face of the document. That is the case here.
The plaintiff submits the two subject guaranties, the Mezzanine Carry Guaranty, and the Mortgage Carry Guaranty, which the defendant executed on December 21, 2020. Under both guaranty agreements, in Section 1.2(b), the “Guaranteed Obligations” are defined to include the borrower’s obligations to pay interest at applicable interest rates and to all “carry operating expenses, insurance premiums, impositions, assessments and “other charges.” Further definitions are found in the underlying loan agreements, which define “impositions” as property taxes as well as “governmental assessments, water, sewer or other rents and charges, excises, levies and fees” incurred by the borrower. “Other charges” is defined to include common charges and maintenance charges comprised of “vault charges and license fees for the use of vaults, chutes, and similar areas adjoining the property, now or hereafter levied or assessed against the property by any governmental authority, other than those required to be paid by a tenant pursuant to its respective lease.”
The plaintiff also submits the two underlying loan agreements – a Mezzanine Loan Agreement, and a Mortgage Loan Agreement. These loan agreements were amended several times, and pursuant to two February 17, 2023, omnibus agreements, both loans were assigned to the plaintiff. Promissory notes executed by the borrowers and initial lenders/administrative agents for each of these loans, both dated December 21, 2018, are also submitted. The plaintiff also submits allonges dated February 17, 2023, assigning the promissory notes to the plaintiff. In an affidavit submitted in support of the motion, Priyanka Garg, authorized representative of the plaintiffs, avers that $26,862,120.37 is outstanding and due under the Mezzanine Carry Guaranty, $30,690,853.84 is outstanding and due under the Mortgage Carry Guaranty, and $936,324.72 in impositions is outstanding. However, as set forth above, these amounts due are not plain on their face pursuant to the guaranties or loan agreements. Both guaranties require the defendant to pay numerous and quite varied obligations of the borrower which necessarily require outside proof, and much of it, to establish any amount owed, taking the matter outside the scope of CPLR 3213. Indeed, here, the extrinsic evidence necessary for the plaintiff to establish its claim against the defendant requires much more than a de minimus deviation from the face of the documents. No reasonable argument can be made that any amounts that may be or become owed by the borrower for unspecified insurance premiums, accruing water and sewer charges, unpredictable government levies, uncalculated property taxes, hypothetical vault fees or future unpaid obligations of an unidentified tenant all require information to be drawn from sources well outside the guarantees at issue here. As such, relief under CPLR 3213 is unavailable here.
(Internal quotations and citations omitted).