On April 19, 2024, Justice Chan of the New York County Commercial Division issued a decision in RS E Orange LLC v. Proudliving Cos., LLC, 2024 NY Slip Op. 31451(U), denying a motion for summary judgment in lieu of complaint because the amount owed was not readily ascertainable, explaining:
CPLR 3213 permits actions based upon an instrument for the payment of money only to be commenced with a motion for summary judgment rather than a complaint. To establish prim a facie entitlement to summary judgment in lieu of complaint on a promissory note, a plaintiff must show that the instrument sued upon contains an unconditional promise to pay a sum certain … due on demand or at a definite time. To establish such entitlement on a guaranty, the plaintiff must show that the sum certain is readily ascertainable, whether or not it appears directly on the face of the guaranty.
An instrument does not qualify for CPLR 3213 treatment if outside proof is needed, other than simple proof of nonpayment or a similar de minimis deviation from the face of the document. CPLR 3213 treatment is not available where plaintiff relies exclusively on conclusory allegations to explain how the amount due was calculated.
Here, the amount specified by plaintiff ($3,999,272.00) is not readily ascertainable on the face of the Guaranty or the Agreement. For instance, nowhere in the documents is there a specific stipulation that defendant owes $3,999,272.00 or a cap on recovery that would be applicable to these facts. All of plaintiffs statements about the $3,999,272.00 owed are conclusory, with nothing in the record showing how the amount due was calculated. The only places this amount is mentioned is in plaintiffs memorandum of law and in the very last paragraph of the Starr affidavit.
It is also unclear what the amount represents as plaintiff does not specify if that is the current Full Redemption Price or some other amount owed. If it is the Full Redemption Price, plaintiff has not established that the Guaranty applies. The definition of Guaranteed Obligations does not expressly include the phrase “Full Redemption Price”, nor is it obviously implied. Because plaintiff does not explain how the $3,999,272.00 amount was calculated, an excursion outside the four corners of the agreement is required to find the amount due. Thus, plaintiff is not entitled to summary judgment in lieu of complaint.
(Internal quotations and citations omitted).