Summary Judgment in Lieu of Complaint Granted After Unopposed Showing of Default on Commercial Lease Guarantees

In 1619-1625 Amsterdam Avenue, LLC v. Costa Casvikes, Case No. 652037/2022 (July 7, 2022), the court granted an unopposed summary judgment in lieu of complaint to a plaintiff property owner seeking payment under two guarantees of a commercial lease.

CPLR 3213 provides for expedited relief in the form of a motion for summary judgment in lieu of a complaint where the plaintiff seeks payment on an instrument for the payment of money only. To satisfy Rule 3213, the instrument must be in writing and it must state an “unequivocal and unconditional obligation to repay” by a specific time. Id. at *1.

Here, the plaintiff presented the court with two signed guarantees of a commercial lease, each stating that the guarantor “hereby guaranties, unconditionally and absolutely, to owner” the tenant’s obligations “as and when due of the fixed rent, additional rent, charges and damages…accruing on or after the commencement date, including the use and occupancy for “anytime the tenant is occupying the demised premises as a holdover tenant.” Id. at *2. The plaintiff established the tenant’s failure to pay on the lease by presenting a confession of judgment for a portion of the arrears, plus an affidavit from the plaintiff’s property manager establishing that the tenant defaulted on the confession of judgment and continued to default on its lease obligations until eventually vacating the premises. Id. at 2. The defendant guarantors did not oppose the motion. 3.

The court held that plaintiff had met its burden by presenting an appropriate written instrument as well as evidence establishing the tenant’s default. In so holding, the court noted that the guarantees did not guarantee the tenant’s performance under the lease—only the payment of rent and other amounts due. Id. Had the guarantees assured performance under the lease, they would not have been instruments for the payment of money only and would not have qualified for Rule 3213 treatment. Id.

Often, CPLR 3213 cases feature a single written instrument or contract. But as Casvikes demonstrates, a plaintiff may also obtain relief under CPLR 3213 where the instrument sued on depends upon one or more other contractual instruments.

If you have questions about procedural options for efficient enforcement of a contract, including situations where a CPLR 3213 action might be appropriate, please contact Michael Rakower or Travis Mock.


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