When can a party sue by moving for summary judgment in lieu of a complaint?

Pursuant to Section 3213 of the New York CPLR, a plaintiff may obtain such accelerated relief when an action is “based upon an instrument for the payment of money only or upon any judgment.”   A promissory note has been deemed to be an instrument for the payment of money only, provided that it contains an unconditional promise by the borrower to pay the lender over a stated period of time.

In Weissman v. Sinorm Deli Inc., 669 N.E.2d 242, 245 (1996), the New York Court of Appeals described an instrument for the payment of money only to be “a negotiable instrument for the payment of money—an unconditional promise to pay a sum certain, signed by the maker and due on demand or at a definite time.”  Pursuant to CPLR 3213, when an action is based on such an instrument, a plaintiff may simply serve the defendant with a summons with notice of motion for summary judgment and supporting papers in lieu of a complaint.  The statutory framework will then allow the plaintiff to obtain a judgment in an expeditious fashion by circumventing the requirement to serve a complaint and the responsive pleadings that come in any litigation.

Last month, the Second Department of the Appellate Division held in Von Fricken v. Schaefer, 118 AD3d 869, 870 (2d Dept. 2014) that a handwritten note by a borrower, which did not contain an unconditional promise to repay the borrowed sum upon demand or at definite time was insufficient, as a matter of law, to entitle the plaintiff to summary judgment. In Von Fricken, the action focused on a handwritten instrument executed by the defendant before a notary public, in which document provided that the defendant borrowed the sum of $25,000 from her now-deceased mother (hereinafter the decedent), and that she “will pay her [mother] back in full with [her] lawsuit money from Billy—of Cool Temp Mechanical—or any debt will be paid in full.”  The Von Fricken decision stresses the importance of ensuring that the proper language is included within a promissory note when lending money to a borrower.   In addition, it provides hope for borrowers when confronted with a 3213 action that defenses may be available to create issues of fact.

If you are in need of having a promissory note or other instrument for the payment of money drafted or are a party in a litigation involving the payment or defense against such instrument then please feel free to contact the attorneys at Bashian & Papantoniou to represent your interests in the handling of such matter.

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