VITOL AMERICAS CORP v. TARGA RESOURCES PARTNERS LP (2024)

Judgment, Supreme Court, New York County (Robert R. Reed, J.), entered November 30, 2022, awarding plaintiff the total amount of $169,812,759.49, and bringing up for review an order, same court and Justice, entered November 14, 2022, which, to the extent appealed from as limited by the briefs, granted plaintiff's CPLR 3213 motion for summary judgment in lieu of complaint, and denied defendant's cross-motion to dismiss, unanimously modified, on the law, to vacate the judgment, deny plaintiff's motion, and remand the matter for conversion to a plenary action, and otherwise affirmed, without costs.  Appeal from aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Because the guaranty at issue reserves to defendant guarantor all defenses that were or may be available to the guaranteed party under a complex commercial contract, it does not qualify as the type of unconditional obligation that is appropriate for treatment under CPLR 3213 (see Cooperatieve Centrale Raiffeisen–Boerenleenbank, B.A., “Rabobank Intl.,” N.Y. Branch v. Navarro, 25 N.Y.3d 485, 493, 15 N.Y.S.3d 277, 36 N.E.3d 80 [2015];  Century City Mall, LLC v. Waxman, 193 A.D.3d 499, 499, 147 N.Y.S.3d 10 [1st Dept. 2021].

While a judgment taken by plaintiff against the guarantor in a litigation in Texas may ultimately resolve the viability of the reserved defenses, it is not relevant to the determination of the applicability of CPLR 3213.  That determination must be made by looking at the agreement at the time of execution, not based on subsequent events (see Kerin v. Kaufman, 296 A.D.2d 336, 338, 745 N.Y.S.2d 22 [1st Dept. 2002]).