On July 5, 2022, Justice Chan of the New York County Commercial Division issued a decision in Murphy v. PHG Funding LLC, 2022 NY Slip Op. 32134(U), denying summary judgment in lieu of complaint because the note did not specify all fuds that were due or when they were due, explaining:
CPLR 3213 is intended to provide a speedy and effective means of securing a judgment on claims presumptively meritorious. To demonstrate that a written instrument qualifies for summary judgment under CPLR 3213, a plaintiff must prove a prima facie case by the instrument and a failure to make the payments called for by its terms. If it is necessary to look outside the document for proof of the debt, then CPLR 3213 procedure is inapplicable. In other words, the defendant must explicitly acknowledge the indebtedness, and the fact of the debt must be apparent from the agreement alone.
Under these standards, plaintiff has not demonstrated entitlement to relief under CPLR 3213 since he has not shown that the Note was an instrument for the payment of money only. The typical example of an instrument for the payment of money only is a negotiable instrument for the payment of money-an unconditional promise to pay a sum certain, signed by the maker and due on demand or at a definite time. Although the Note contains an unconditional promise to pay principal and interest on a date certain, the provision for payment of “Additional Amounts” bars plaintiff from obtaining relief under CPLR 3213. Specifically, to qualify as an instrument for payment of money only, there must be a promise to pay a sum certain over a specified period of time which cannot be based on extrinsic evidence.
In this case the provision in the Note requiring defendants to pay “Additional Amounts … until payment in full” involves the payment during an undefined period of time based unspecified amounts to be paid to defendants in the future from a third·party entity. Under these circumstances, summary judgment in lieu of complaint must be denied.
(Internal quotations and citations omitted).