Opinion
2014-03-26
Francis X. SUOZZI, respondent, v. Jay E. SCHARF, et al., defendants, Michael LaRaia, et al., appellants.
Hinman, Howard & Kattell, LLP, Binghamton, N.Y. (Charles D. Kreig of counsel), for appellants. James P. Naples, Buffalo, N.Y., for respondent.
Hinman, Howard & Kattell, LLP, Binghamton, N.Y. (Charles D. Kreig of counsel), for appellants. James P. Naples, Buffalo, N.Y., for respondent.
In an action to recover on certain personal guarantees, commenced by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendants Mark R. Wenger and Michael LaRaia appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), entered July 5, 2012, as granted the plaintiff's renewed motion for summary judgment on the issue of liability as against the defendants Mark R. Wenger and Michael LaRaia.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the plaintiff's renewed motion for summary judgment on the issue of liability as against the defendants Mark R. Wenger and Michael LaRaia is denied, and the motion and answering papers are deemed to be the complaint and answer, respectively.
The plaintiff commenced this action pursuant to CPLR 3213 to recover on several guarantees of a loan made to a company, 291 Digital N.Y., LLC (hereinafter 291 N.Y.), that is partly owned by the defendants. The defendants Michael LaRaia and Mark R. Wenger (hereinafter together the appellants) are two of the guarantors. The guarantees provided, inter alia, that the guarantors “d [id] not guarantee ... (ii) any regularly scheduled monthly payment then due and owing subsequent to the bankruptcy, liquidation (but not merger) or insolvency of 291 N.Y., or the foreclosure by 291 N.Y.'s senior lender pursuant to its loan facility with 291 N.Y.”
The Supreme Court erred in granting the plaintiff's renewed motion pursuant to CPLR 3213 for summary judgment on the issue of liability as against the appellants. “Pursuant to CPLR 3213, a party may commence an action by motion for summary judgment in lieu of complaint when the action is ‘based upon an instrument for the payment of money only or upon any judgment’ ” ( Lawrence v. Kennedy, 95 A.D.3d 955, 957, 944 N.Y.S.2d 577, quoting CPLR 3213; see Goodyear Tire & Rubber Co. v. Azzaretto, 103 A.D.3d 880, 881, 962 N.Y.S.2d 220). An instrument “does not qualify for accelerated judgment under CPLR 3213 [where] ‘outside proof is needed ... other than simple proof of nonpayment or a similar de minimis deviation from the face of the document’ ” ( Kerin v. Kaufman, 296 A.D.2d 336, 338, 745 N.Y.S.2d 22, quoting Weissman v. Sinorm Deli, 88 N.Y.2d 437, 444, 646 N.Y.S.2d 308, 669 N.E.2d 242).
Here, extrinsic proof is needed to determine the enforceability of the subject guarantees, in light of the conditional nature of those guarantees. Consequently, the action was not properly commenced pursuant to CPLR 3213, and the motion for summary judgment should have been denied ( see Kerin v. Kaufman, 296 A.D.2d at 338, 745 N.Y.S.2d 22;see also Weissman v. Sinorm Deli, 88 N.Y.2d at 444, 646 N.Y.S.2d 308, 669 N.E.2d 242;Lawrence v. Kennedy, 95 A.D.3d at 957, 944 N.Y.S.2d 577). SKELOS, J.P., LOTT, ROMAN and COHEN, JJ., concur.