MARJAN INTERNATIONAL CORPORATION v. Daniel Weiss, Defendant. (2024)

Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered on December 10, 2021, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment in lieu of complaint on its claims to recover on a note and guaranty against defendants Lillian August Designs, Inc. (LADI) and John Weiss, unanimously reversed, on the law, with costs, the motion granted as against those defendants, and the matter remanded for settlement of judgment in the principal amount of $870,000, with costs and interest.

We need not determine whether the note and guaranty would be considered instruments for the payment of money only under applicable case law, because the note executed by LADI provides that LADI “acknowledges and agrees that this Note is an instrument for the payment of money only within the meaning of the CPLR 3213 and expressly waives any right and hereby agrees not to assert that this Note is not such an instrument,” and the guaranty executed by Weiss contains similar waiver language.  Absent any contention that the waivers were not valid, the note and guaranty are subject to collection pursuant to the expedited procedure provided by CPLR 3213 (see SCP [Bermuda] Inc. v. Bermudatel Ltd., 224 A.D.2d 214, 216, 638 N.Y.S.2d 2 [1st Dept. 1996]).

Plaintiff established its prima facie entitlement to summary judgment by submitting proof of the note and guaranty, and the failure of LADI and Weiss to make the payments called for by their terms (Boland v. Indah Kiat Fin. (IV) Mauritius, 291 A.D.2d 342, 343, 739 N.Y.S.2d 122 [1st Dept. 2002];  SCP [Bermuda] Inc., 224 A.D.2d at 216, 638 N.Y.S.2d 2).  Although defendants contested plaintiff's showing concerning the timing of LADI's payments under the note, they did not dispute that LADI paid only $630,000 toward the payments due under the note as of November 2, 2020, and that, upon acceleration of the note following default, $870,000 remained unpaid.  Interest is provided for in the note.  As there are no bona fide issues of fact concerning the amounts owed, plaintiff is entitled to summary judgment on its claims against LADI and Weiss (see Royal Equities Operating, LLC v. Rubin, 154 A.D.3d 516, 517, 62 N.Y.S.3d 337 [1st Dept. 2017];  Kornfeld v. NRX Tech., Inc., 93 A.D.2d 772, 773, 461 N.Y.S.2d 342 [1st Dept. 1983], affd 62 N.Y.2d 686, 476 N.Y.S.2d 523, 465 N.E.2d 30 [1984]).