On September 6, 2022, Justice Chan of the New York County Commercial Division issued a decision in Feenix Venture Partners, LLC v. TBS, Inc., 2022 NY Slip Op. 32980(U), holding that a guaranty that guarantees both payment and performance is not an instrument for the payment of money only for CPLR 3213 purposes, explaining:
CPLR 3213 is intended to provide a speedy and effective means of securing a judgment on claims presumptively meritorious. The accelerated procedure applies to an instrument for the payment of money only and to qualify for CPLR 3213 treatment, a plaintiff must prove a prima facie case by the instrument and a failure to make the payments called for by its terms. . . .
The next issue is whether the Guaranties qualify as instruments for payment of money only. Courts have held that an unconditional guaranty is an instrument for the payment of money only within the meaning of CPLR 3213.
The individual defendants argue that the Guaranties do not qualify as instruments for payment of money only since they guarantee not only payment but performance. Specifically, under section 1.1 of the Guaranties, each of the individual defendants agreed to unconditionally and absolutely guarantee the full and prompt payment and performance of any and all of Borrower’s Obligations (as hereinafter defined) when due, whether at stated maturity, upon demand, by acceleration or otherwise in accordance with the terms thereof. The term Obligations is defined under the Guaranties to mean any and all obligations, indebtedness and other liabilities of Borrower to the Administrative Agent and Lenders now or hereafter existing, of every kind and nature. Hence, the performance goes beyond the payment of money only.
As the Guaranties do not qualify as instruments for the payment of money only, summary judgment in lieu of complaint must be denied.
(Internal quotations and citations omitted).