Your commercial tenant went dark and dropped the keys off before the expiration of the lease, leaving you with back rent on the books and no tenant paying ongoing rent. Distress in the retail leasing sector under pressure by ecommerce is making this an increasingly likely scenario. Against a tenant who is no longer in possession a landlord-tenant summary proceeding is not an option to recover the back rent, and never could get future rent. But with an effective rent acceleration clause and good guy guaranty, there is a little-used legal procedure that could allow the landlord to quickly pursue the guarantor for lost back and future rents: a motion for summary judgment in lieu of complaint.

An ordinary lawsuit has procedures that could delay judgment for several months to a year or more. But New York law (CPLR 3213) provides that, when an action is based upon “an instrument for the payment of money only” or upon a judgment, the plaintiff may serve a summons and a notice of motion for summary judgment with supporting papers instead of a complaint. The defendant must ordinarily submit answering papers on the motion within 20 to 40 days after the summons and motion is served depending upon how service was made and whether the plaintiff wants an opportunity to reply.

This procedure skips the pleading stage and avoids a trial by proceeding directly to a motion for summary judgment, but the action must qualify as one based on an instrument for the payment of money only or on a judgment. Suing a guarantor on the money judgment for the tenant's rent arrears ordinarily qualifies. But does a lease guaranty qualify as “an instrument for the payment of money only” so as to avail the owner of the expedited procedure to recover additional breach of lease damages such as accelerated future rents?