The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 were read on this motion for SUMMARY JUDGMENT IN LIEU OF COMPLAINT. This is an action to collect on sums allegedly owed under a merchant-cash-advance agreement and guarantee. Plaintiff, Irwin Funding, LLC, moves under CPLR 3213 for summary judgment in lieu of complaint against defendants Dexter Young Cattle Feeding (Merchant) and Dexter Young individually (Guarantor). The motion is denied. CPLR 3213 applies only if the movant’s claim is based on an “instrument for the payment of money only.” As a result, “where the instrument” relied on by the movant “requires something in addition to defendant’s explicit promise to pay a sum of money, CPLR 3213 is unavailable.” (Weissman v. Sinorm Deli, Inc., 88 NY2d 437, 444 [1996].) For example, “if outside proof is needed” of the entitlement to relief beyond the instrument itself and “simple proof of nonpayment or a similar de minimis deviation from the face of the document” (such as referring to a commonly available interest rate), a movant may not rely on CPLR 3213. (Id.) Here, the merchant-cash-advance agreement between plaintiff and defendant Merchant is not an instrument for the payment only: It imposes many performance obligations on Merchant, not merely an unconditional promise to pay money. (See e.g. NYSCEF No. 6 at §§1.1, 1.10, 1.12.) If Merchant breaches the agreement, at that point it will be responsible for paying plaintiff a specified sum of money. But that is true of any contract with, for example, a liquidated-damages provision. And plaintiff’s stated basis for relief was not a failure by Merchant to pay money as promised. Rather, it was a breach of the non-monetary contractual requirement to give advance notice to plaintiff should the funds in Merchant’s account drop too low to cover plaintiff’s daily receivables withdrawals. (See NYSCEF No. 5 at 4-5.) For that reason, establishing plaintiff’s claim against Merchant would require proof beyond the instrument itself and simple proof of nonpayment. Similarly, defendant Guarantor’s guarantee is not an instrument for the payment of money only. Guarantees qualify for CPLR 3213 treatment only if they are unconditional guarantees of payment, not also guarantees of performance. (See iPayment, Inc. v. Silverman, 192 AD3d 586, 587 [1st Dept 2021].) The guarantees, each titled “Guarantee of Performance,” are not unconditional, and make Guarantor responsible both for payment and performance. (NYSCEF No. 6 at 9; NYSCEF No. 8 at 9.) Plaintiff cannot rely on CPLR 3213 to obtain judgment based on these guarantees. Given the unavailability of CPLR 3213 relief, this court converts this motion-action into a plenary action, in which plaintiff’s motion papers shall be deemed the complaint and exhibits. Ordinarily, in this scenario, the opposition papers would be deemed an answer and exhibits. Defendants have not, however, opposed the motion. Defendants will be afforded the opportunity to file an answer; should they fail to do so, plaintiff may then move for default judgment.1 Accordingly, it is ORDERED that plaintiff’s CPLR 3213 motion for summary judgment in lieu of complaint is denied; and it is further ORDERED that plaintiff’s CPLR 3213 motion-action is converted into a plenary action, with plaintiff’s motion papers deemed a complaint and supporting exhibits; and it is further ORDERED that defendants shall, within 30 days of service of notice of entry of this order, file answering papers, or be deemed in default; and it is further ORDERED that plaintiff shall serve a copy of this order with notice of its entry on defendants by certified mail, return receipt requested, directed to defendants’ last-known addresses. Dated: October 21, 2022
