Equinox F&B, Inc., Plaintiff, v. LLC (2025)

In this CPLR 3213 motion-action, plaintiff, Equinox F&B, Inc., moves for summary judgment in lieu of complaint against The Juice Press, LLC, seeking at least $434,659.47 in fees that defendant allegedly owes as the licensee of a number of juice bar cafes located within plaintiff's health clubs. But the agreement on which plaintiff sues, as amended, is not an instrument for the payment of money only within the meaning of CPLR 3213. Plaintiff's motion for summary judgment is denied, and this motion-action is converted into a plenary action.

DISCUSSION

The accelerated procedure under CPLR 3213 is available only for "instruments for the payment of money only." To succeed on a CPLR 3213 motion, a plaintiff must prove its right to payment "from the face of a document, without regard to extrinsic evidence." (Matas v Alpargatas S.A.I.C., 274 AD2d 327, 328 [1st Dept 2000].) "Put another way, a document comes within 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," with no outside proof needed other than "simple proof of nonpayment or a similar de minimis deviation from the face of the document," such as a readily accessible interest rate. (Weissman v Sinorm Deli, Inc., 88 NY2d 437, 444 [1996] [internal quotation marks omitted].)

The initial agreement between the parties is not an instrument for the payment of money only. Rather, it is a complex commercial contract imposing numerous performance obligations on both parties, only some of which involve the payment of money. (See NYSCEF No. 11 [agreement].) Nor does plaintiff contend otherwise. Instead, it relies on what it describes as an amendment to the initial agreement, under which defendant was assertedly "unconditionally obligated to make weekly payments to [plaintiff] of varying 'flat' amounts, comprised of deferred fee arrears and current fees." (NYSCEF No. 16 at 3 [opening mem. of law].) This document, plaintiff says, "acknowledge[es] an unconditional debt obligation," and thereby qualifies for CPLR 3213 treatment. (NYSCEF No. 44 at 3.) This court disagrees.

The amendment on which plaintiff relies does not provide that it imposes (or acknowledges) an unconditional obligation to pay money. Indeed, it has no substantive terms at all. It is merely a one-page (re)payment schedule that appears to modify defendant's fee-payment obligations under the parties' contract. (See NYSCEF No. 12 at 4.) But a payment schedule, unaccompanied by any operative promissory language, does not constitute a promissory note, or some other type of payment instrument, as plaintiff would have it. Nor does plaintiff provide any authority that a payment schedule of this kind may constitute a freestanding instrument for the payment of money only.

Instead, this payment schedule is exactly as plaintiff describes it: an amendment of an existing set of payment obligations set out in another document (namely the parties' initial contract), not a freestanding set of obligations. Indeed, plaintiff itself acknowledges that this amendment "did not alter the financial agreements of the parties set forth in the Original MOA" for certain time periods. (NYSCEF No. 16 at 3 n 2.) For that matter, plaintiff relies on a forum-selection clause in "§ 22 of the Original MOA" to avoid any challenge to personal jurisdiction (Id. at 2 n 1); and plaintiff's request for an award of attorney fees is based on a fee-shifting provision in § 10 of the initial contract (id. at 7-8). Because that initial contract is not an instrument for the payment of money only, the contract as amended by the payment schedule relied on by plaintiff is not one, either. Plaintiff's motion for summary judgment in lieu of complaint is denied.¹

Accordingly, it is

ORDERED that plaintiff's CPLR 3213 motion is denied; and it is further

ORDERED that this motion-action is converted into a plenary action, with plaintiff's motion papers deemed a complaint with supporting exhibits, and defendant's opposition papers deemed an answer with supporting exhibits; and it is further

ORDERED that the parties are directed to appear before this court for a telephonic preliminary conference on May 23, 2025.

DATE 4/28/2025

FOOTNOTES

1.   Given this disposition, the court does not reach defendant's alternative argument that the motion should be denied because material disputes of fact exist about plaintiff's entitlement to the fees claimed.

Gerald Lebovits, J.