Practice point: The Appellate Division determined that the Supreme Court properly granted the plaintiff's motion for summary judgment in lieu of complaint. The plaintiff made a prima facie showing of its entitlement to summary judgment pursuant to CPLR 3213 by submitting the two subject contracts, each of which contained the defendant's unconditional promise to pay a sum certain, and evidence demonstrating the defendant's failure to make the payments called for by their terms. The Appellate Division found that, contrary to the defendant's contention, in opposition to the plaintiff's motion, he failed to raise a triable issue of fact as to any circumstances that would alter his unconditional obligation to pay the amounts due.
Student note: 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. An instrument is considered to be for the payment of money only if it contains an unconditional promise to pay a sum certain over a stated period of time. A document comes within the ambit of CPLR 3213 if a prima facie case would be made out by the instrument and a failure to make the payments called for by its terms. However, the instrument does not qualify if outside proof is needed, other than simple proof of nonpayment or a similar de minimis deviation from the face of the document. While a defendant can defeat the motion by offering evidentiary proof sufficient to raise a triable issue of fact, averments merely stating conclusions, of fact or of law, are insufficient.
Case: Sisters of Holy Child Jesus at Old Westbury, Inc. v. Pallotta, NY Slip Op 06504(2d Dept. 2015)
Here is the decision.
Tomorrow's issue: A golf-cart injury and assumption of risk.
