GOLDBERG WEPRIN FINKEL GOLDSTEIN LLP v. TREMONT MORGAN STAM LLC STAM (2018)

This is a motion, pursuant to CPLR § 3213, for summary judgment in lieu of complaint, in the amount of $350,000, by plaintiff Goldberg Weprin Finkel Goldstein LLP against defendants Sonja Tremont-Morgan, STAM LLC and Civil Building Company STAM. Defendants have not opposed the motions. For the reasons stated below, the motion is denied.

CPLR § 3213 provides that “[w]hen an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint.” “In order to make a prima facie showing of entitlement to judgment as a matter of law pursuant to CPLR 3213, a plaintiff must show that (1) the defendant executed an instrument that contains an unequivocal and unconditional promise to repay the plaintiff upon demand or at a definite time, and (2) the defendant failed to pay in accordance with the instrument's terms.” Mirham v. Awad, 131 AD3d 1211, 1211 (2d Dept 2015) (citations omitted).

Here, plaintiff's motion is based upon a so-ordered stipulation signed on March 31, 2016 by plaintiff and defendants in the United States Bankruptcy Court for the Southern District of New York. The stipulation provides that, in connection with defendants' bankruptcy proceedings, the defendants were jointly obligated to pay plaintiff $350,000 in legal fees and expenses related to the proceedings in the bankruptcy court.

Plaintiff contends that the stipulation constitutes an instrument for the payment of money only because it is an unconditional promise to pay the plaintiff $350,000 for legal fees and expenses. However, the stipulation does not set forth a definite time by which the money had to be paid. As such, the court must presume, for the purposes of this motion, that payment was due on demand.

Plaintiff states that defendants have not paid the $350,000 despite plaintiff's demand. However, plaintiff does not state when or how any such demand was made, nor does plaintiff provide any evidence of such a demand being made on defendants. As such, plaintiff has not adequately demonstrated that it is entitled to expedited judgment pursuant to CPLR § 3213. Accordingly, it is

ORDERED that the motion by plaintiff Goldberg Weprin Finkel Goldstein LLP, pursuant to CPLR § 3213, for summary judgment in lieu of complaint, is denied.

Robert R. Reed, J.