On September 6, 2024, Justice Crane of the New York County Commercial Division issued a decision in Oxford Fin. LLC v. Makesh, 2024 NY Slip Op. 33150(U),
CPLR 3213 provides for accelerated judgment where the instrument sued upon is for the payment of money only and the right to payment can be ascertained from the face of the document without regard to extrinsic evidence, other than simple proof of nonpayment or a similar de minimis deviation from the face of the document. Generally, an action on a guaranty is an action for payment of money only. The same standards that apply to motions for summary judgment under CPLR 3212 apply to CPLR 3213 motions. Movant must make a prima facie case by submitting the instrument and evidence of the defendant’s failure to make payments in accordance with the instrument’s terms. A guaranty may be the proper subject of a motion for summary judgment in lieu of complaint whether or not it recites a sum certain, and the need to consult the underlying documents to establish the amount of liability does not affect the availability of CPLR 3213. . . .
Plaintiff has established prima facie entitlement to summary judgment in lieu of complaint. Here, the Guaranty is an instrument for the repayment of money only and thus qualifies for CPLR 3213 relief. Plaintiff submits the Loan Agreement, the Guaranty, and the affidavit of Patrick Mc Lenahan, the Executive Director of Oxford Finance LLC. McLenahan sets forth the basis for those amounts owed and defendants nonpayment.
Plaintiff is entitled to recover the liability limit under the Guaranty. Plaintiff’s evidence demonstrates that the defendants agreed to responsible for the loan debt (up to $5 million plus enforcement costs), that the borrowers defaulted on the loan and never repaid the amounts owed, and that defendants did not pay the outstanding sums. . . .
Defendants argue that the Guaranty is not an instrument for the payment of money only, alleging that plaintiff relies on the underlying documents to determine obligations and events of default. This claim is unavailing. The Guaranty explicitly states the liability limit. Further, the Guaranty refers to the Loan Agreement to define Events of Default to determine if the amount should be altered. Accordingly, that does not affect availability of relief under CPLR.
In addition, a provision in the instrument that refers to another document for the definition of a term may still be an instrument for the payment of money only. The Guaranty states that guarantor unconditionally guaranties the full and prompt payment and performance when due, whether at maturity or earlier, by reason of acceleration or otherwise, and sometimes thereafter, of all obligations (as defined in the loan agreement). . . .
The court rejects Defendants’ contention that the Guaranty is not an instrument for the payment of money only because it states, “payment and performance.” The Obligations are all financial in nature. That is, there is no obligation to perform anything other than tendering payment for borrowers’ debts. Further, additional provisions in a guaranty do not bar CPLR 3213 relief when they do not require additional performance as a condition precedent to payment.
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