MUSEUM BUILDING HOLDINGS LLC v. SCHREIBER (2025)

Judgment, Supreme Court, New York County (Gerald Lebovits, J.), entered July 28, 2023, awarding plaintiff a money judgment against defendant, and bringing up for review an order, same court and Justice, entered June 7, 2023, which granted plaintiff's motion for summary judgment in lieu of complaint and denied defendant's motion to compel plaintiff to accept untimely opposition papers, unanimously affirmed, with costs.

Plaintiff established prima facie that it properly served defendant pursuant to CPLR 308(4).  The process server's affidavits established that she attempted to serve defendant at his home four times over eight days, and at different times of the day, before affixing the papers to his door and mailing them to him (see Matter of BNB Bank v. HealthFirst PHSP Inc., 193 A.D.3d 525, 526, 146 N.Y.S.3d 255 [1st Dept. 2021];  Hochhauser v. Bungeroth, 179 A.D.2d 431, 431, 578 N.Y.S.2d 170 [1st Dept. 1992]).  Defendant's denial of service was insufficient to warrant a traverse hearing (see Sharbat v. Law Offs. of Michael B. Wolk, P.C., 121 A.D.3d 426, 427, 993 N.Y.S.2d 691 [1st Dept. 2014]).

Supreme Court providently exercised its discretion in denying defendant's motion to compel acceptance of his untimely opposition pursuant to CPLR 3012(d) (see Emigrant Bank v. Rosabianca, 156 A.D.3d 468, 472, 67 N.Y.S.3d 175 [1st Dept. 2017]).  Defendant did not oppose plaintiff's motion until more than four months after the motion was filed and two months after the motion's opposition deadline (see 599 Ralph Ave. Dev., LLC v. 799 Sterling Inc., 34 A.D.3d 726, 825 N.Y.S.2d 129 [2d Dept. 2006]).  Even if considered, the court correctly determined that defendant's undisputed breach of the guaranty could be summarily adjudicated via CPLR 3213, as an absolute, unconditional, and irrevocable guarantee of payment is an instrument for the payment of money only (see Cooperatieve Centrale Raiffeisen–Boerenleenbank, B.A., “Rabobank Intl.,” N.Y. Branch v. Navarro, 25 N.Y.3d 485, 492, 15 N.Y.S.3d 277, 36 N.E.3d 80 [2015];  Punch Fashion, LLC v. Merchant Factors Corp., 180 A.D.3d 520, 521, 120 N.Y.S.3d 284 [1st Dept. 2020], lv dismissed 35 N.Y.3d 1124, 134 N.Y.S.3d 7, 158 N.E.3d 898 [2020]).

Contrary to defendant's argument, the mere addition of the words “and performance” does not remove the guaranty from the category of instruments for the payment of money only, particularly when the sentence includes “as and when the same shall be due and payable” (see e.g. 27 W. 72nd St. Note Buyer LLC v. Terzi, 194 A.D.3d 630, 632, 150 N.Y.S.3d 34 [1st Dept. 2021], lv denied 37 N.Y.3d 913, 2021 WL 4782862 [2021]).  Furthermore, summary judgment in lieu of complaint is appropriate “even though the obligation was referenced by underlying agreements” (Nordea Bank Finland PLC v. Holten, 84 A.D.3d 589, 590, 923 N.Y.S.2d 464 [1st Dept. 2011];  see Arbor–Myrtle Beach PE LLC v. Frydman, 202 A.D.3d 464, 465, 158 N.Y.S.3d 821 [1st Dept. 2022]), and the fact that one must look at the nonparty borrower's “books and records to determine the amount of” the debt “does not bar the use of CPLR 3213” (Punch Fashion, 180 A.D.3d at 522, 120 N.Y.S.3d 284).

Defendant's reliance on the protections for guarantors under RPAPL 1371(2) is unavailing, as the property in this case is located outside of New York State (see Provident Sav. Bank & Trust Co. v. Steinmetz, 270 N.Y. 129, 133, 200 N.E. 669 [1936];  Wells Fargo Bank, N.A. v. Bajana, 228 A.D.3d 526, 527, 211 N.Y.S.3d 384 [1st Dept. 2024];  Taylor, Bean & Whitaker Mtge. Corp. v. Daniel, 225 A.D.3d 437, 439, 204 N.Y.S.3d 512 [1st Dept. 2024]).  In addition, defendant waived the right to assert any defenses in connection with the guaranty, including the express argument pertaining to credit bids at foreclosure.