On March 24, 2022, the First Department issued a decision in Bank of Am., N.A. v. Filho, 2022 NY Slip Op. 02055, holding that a guaranty that guaranteed both payment and performance is not an instrument for the payment of money only for CPLR 3213 purposes, explaining:
Supreme Court providently exercised its discretion in granting leave to reargue and, upon reargument, denying plaintiff’s CPLR 3213 motion. On its initial CPLR 3213 motion, regardless of the substance or sufficiency of the guarantors’ opposition, plaintiff failed to make a prima facie showing of entitlement to summary judgment in lieu of complaint for the guaranties at issue. Each of the guaranties at issue states that it is a “guaranty of payment and performance” of the aircraft lease and that if there is a default, the guarantor “shall (i) punctually pay any such Obligations requiring the payment of money . . . and (ii) punctually perform any and all Obligations not requiring the payment of money.” Furthermore, the guaranties’ defined term “Obligations” groups both payment and performance obligations together, and therefore promise both payment and performance. For that reason, summary judgment in lieu of complaint is not appropriate, as CPLR 3213 allows actions based upon instruments for the payment of money only.
(Internal citations omitted).