e policy, and identified its appraiser. Tower then identified its appraiser, and the umpire was selected on February 3, 2014. By letters dated December 9, 2013 and January 13, 2014, Tower advised MZM that the claim was not finalized because it was waiting for the appraisal. In both letters, Towers reserved all rights under the policy. On February 2, 2015, MZM served Tower with an Appraisal Award signed by MZM’s appraiser and the umpire. The Appraisal Award identified $170,129.96 as the total amount of windstorm damage to the property, including amounts for property damage and business interruption. Tower denied MZM’s claim because the Appraisal Award failed to “state separately the value of the property and the amount of loss” under the building coverage provisions, and to “state separately the amount of Net Income and operating expense and the amount of loss” for a business income loss award. On June 19, 2015, MZM filed a motion for summary judgment in lieu of complaint pursuant to NY CPLR § 3213. Tower moved to dismiss based on the policy condition requiring that any action against the insurer be “brought within 2 years after the date on which the direct physical loss or damage occurred.” An Appraisal Award Does Not Qualify for Accelerated Treatment Under NY CPLR § 3213 As a procedural matter, the court determined that the insured’s effort to seek accelerated treatment under NY CPLR § 3213 was improper. NY CPLR § 3213 provides: “When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint.” Cases following this procedure generally involve “some variety of commercial paper in which the party to be charged has formally and explicitly acknowledged an indebtedness. Where the instrument requires something in additional to defendant’s explicit promise to pay a sum of money, CPLR 3213 is unavailable” (quoting Weissman v

r the policy, and identified its appraiser. Tower then identified its appraiser, and the umpire was selected on February 3, 2014. By letters dated December 9, 2013 and January 13, 2014, Tower advised MZM that the claim was not finalized because it was waiting for the appraisal. In both letters, Towers reserved all rights under the policy.On February 2, 2015, MZM served Tower with an Appraisal Award signed by MZM’s appraiser and the umpire. The Appraisal Award identified $170,129.96 as the total amount of windstorm damage to the property, including amounts for property damage and business interruption. Tower denied MZM’s claim because the Appraisal Award failed to “state separately the value of the property and the amount of loss” under the building coverage provisions, and to “state separately the amount of Net Income and operating expense and the amount of loss” for a business income loss award.On June 19, 2015, MZM filed a motion for summary judgment in lieu of complaint pursuant to NY CPLR § 3213. Tower moved to dismiss based on the policy condition requiring that any action against the insurer be “brought within 2 years after the date on which the direct physical loss or damage occurred.”An Appraisal Award Does Not Qualify for Accelerated Treatment Under NY CPLR § 3213As a procedural matter, the court determined that the insured’s effort to seek accelerated treatment under NY CPLR § 3213 was improper. NY CPLR § 3213 provides: “When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint.” Cases following this procedure generally involve “some variety of commercial paper in which the party to be charged has formally and explicitly acknowledged an indebtedness. Where the instrument requires something in additional to defendant’s explicit promise to pay a sum of money, CPLR 3213 is unavailable” (quoting Weissman v. Si

rms of the loan, and a short form promissory note executed by the Borrower, which incorporated a few basic elements; namely, a description of the loan amount, a reference to the underlying credit agreement, and confirmation that principal and interest shall be paid. A promissory note issued for a revolving credit agreement will, in addition to the foregoing, reflect on its face the total commitment of the Lender, include a grid to be updated by the Lender reflecting amounts advanced and repaid, and language that the promissory note secures the aggregate amount outstanding. Generally, promissory notes issued in the context of credit agreements are not negotiable instruments. What is the benefit to a Lender?While many Lenders no longer have an internal policy requiring loan obligations to be evidenced by promissory notes, these instruments are regularly included as a transaction document. An often-cited reason, beside acting as evidence of the Borrower’s obligation to repay the loan, is Section 3213 of the New York Civil Practice Law and Rules, which allows applications for summary judgment on “instruments for the payment of money only.” While courts have generally held that promissory notes which reference a credit agreement or that calculate interest based on an external rate are instruments for the payment of money only, not all promissory notes will meet the standard and some thought should be taken as to what terms to include. Revolving loan facilities also benefit from a promissory note. These promissory notes (and the credit agreement) often state that “absent manifest error” notations made to the grid by the Lender (or the Agent) to reflect advances shall be prima facie evidence of the amount of such advances. If an advance was in dispute, it would then be for the Borrower to provide evidence to the contrary. Are there concerns in having a promissory note?As noted above, most promissory notes issued in the context of a credit agreement are usually not negotiable. Under Article 3 of the Uniform Commercial Code, a pro