KELLY v. MUNN WORKS LLC (2026)

The following e-filed documents, listed in NYSCEF by document numbers 1-21, were read on this motion by Plaintiff, John Kelly (“Plaintiff” or “Lender”), for an order pursuant to CPLR 3213 granting Plaintiff summary judgment in lieu of complaint against Defendants Munn Works LLC (“Defendant Munn LLC” or “Munn Works” or “Borrower”), Max Munn (“Defendant Mr. Munn” or “Max” or “Guarantor”) and Laurie Munn (“Defendant Mrs. Munn” or “Laurie” or “Guarantor”) (together “Defendants”), under a Promissory Note (“Note”) and a Payment Guaranty (“Guaranty”) in the amount of $200,000.00, together with interest at a rate of 10% per annum from March 1, 2025.

Defendants oppose the motion.

Based on the foregoing papers and for the reasons stated herein, Plaintiff's motion shall be granted.

A. Plaintiff's Contentions in Support of the Motion

In support of the motion, Plaintiff submits: (1) his own affirmation dated May 9, 2026 (“Plf's Aff.” [NYSCEF Doc. No. 3]), attesting to his personal knowledge of the facts and circumstances surrounding the execution of the Note attached as Exhibit A (NYSCEF Doc. No. 4); and (2) a Memorandum of Law (“Plf's Mem.” [NYSCEF Doc. No. 5]).

Plaintiff affirms that he was employed by Defendant Munn LLC, a manufacturer of lighted and decorative mirrors, when Defendant Munn LLC was operating at 150 North MacQuesten Parkway, Mount Vernon, New York (Plf's Aff. at ¶ 2). Mr. Munn was the principal of Defendant Munn LLC and Plaintiff was the Vice President of Sales for more than seven years when he made the loan to Defendant Munn LLC (id. at ¶¶ 3, 5). Defendant Mrs. Munn is the wife of Defendant Mr. Munn (id. at ¶ 4). According to Plaintiff:

6. In the fall of 2024, Max asked me if he could borrow some money. Initially, he asked for $100,000. I lent him $100,000 in September 2024, and another $100,000 on March 12, 2025. Max said he needed the money for the business for a short term and he promised to repay it very shortly, by January 1, 2026.

7. Max had a promissory note prepared, which was dated March 1, 2025, and was signed by Munn Works as the borrower and by Max and Laurie as guarantors. A true copy of the promissory note and guaranty is annexed as Exhibit A.

8. The promissory note provides the $200,000 would accrue interest at the rate of 10% per annum from March 1, 2025, and it would all be paid by January 1, 2026.

9. In January of this year, I called Max and asked him for my money. He said he didn't have it. Neither Munn Works, Max nor Laurie has repaid any portion of the loan (id. at ¶¶ 6-9).

The Note provides in pertinent part:

PROMISSORY NOTE

Original Issue Date: March, 1, 2025 $200,000

THIS PROMISSORY NOTE (the “Note”) is a duly authorized and validly issued Note of MunnWorks, LLC. (the “Borrower”), located at 150 N. Macquesten Pkwy, Mt. Vernon, NY 10550 (this “Note”).

In consideration for the payment by John Kelly (the “Holder”) of $200,000 to the Borrower, the Borrower promises to pay to the Holder, or to its order, the amount of $200,000 (the “Repayment Amount”) on January 1, 2026 (the “Maturity Date”)․This Note is subject to the following additional provisions:

Section 1. Interest; Prepayment; Guarantee. The Borrower acknowledges and agrees this Note shall bear interest from the Original Issue Date on the outstanding Repayment Amount at a rate of 10% per annum and shall be payable on the Maturity Date․The payment of this Note and any accrued interest is hereby guaranteed in its entirety by Max Munn and Laurie Munn.

Section 2. Miscellaneous.

Absolute Obligation. Except as expressly provided herein, no provision of this Note shall alter or impair the obligation of the Borrower, which is absolute and unconditional, to pay the principal of, liquidated damages and accrued interest, as applicable, on this Note․This Note is a direct debt obligation of the Borrower․(NYSCEF Doc. No. 4 at 1).

The Note was signed by the “BORROWER” identified as: “MunnWorks, LLC By Max Munn CEO” and bears the signature of “Max Munn (id.) who, along with Defendant Mrs. Munn, signed the Note as “GUARANTORS” (id.).

In his Memorandum of Law, Plaintiff argues that:

[s]hortly after Plaintiff made the loan, [Defendant Munn LLC] ceased operations.

In January 2026, when the note matured, [Defendant Munn LLC] was out of business. [Defendant Munn LLC] and the individual guarantors [Defendants Mr. and Mrs. Munn] failed and refused to pay the $200,000 due under the Note (Plf's Mem. at 1).

Plaintiff argues that he is entitled to summary judgment in lieu of complaint as the Note was executed by Plaintiff, as the lender and holder of the Note, and Defendant Munn LLC, as Borrower, with an express absolute and unconditional promise by Defendant Munn LLC to pay Plaintiff $200,000.00 and that obligation is expressly guaranteed by Defendants Mr. and Mrs. Munn (id. at 1-3).

B. Defendants' Contentions in Opposition

In opposition to the motion, Defendants Munn LLC and Mr. and Mrs. Munn submit: (1) a Memorandum of Law (“Defs' Mem.” [NYSCEF Doc. No. 16]); (2) an affirmation of Mr. Munn dated June 29, 2026 (“Mr. Munn Aff.” [NYSCEF Doc. No. 13]), attesting to his personal knowledge of the facts and circumstances surrounding the execution of the Note; (3) a $100,000.00 check dated March 12, 2025, signed by Plaintiff and made out to “Max Munn” attached as Exhibit 1 (NYSCEF Doc. No. 15); and (4) an affirmation of Mrs. Munn dated June 29, 2026 (“Mrs. Munn Aff.” [NYSCEF Doc. No. 14]), attesting to her personal knowledge of the facts and circumstances pertaining to the execution of her guaranty under the Note.

In his affirmation, Mr. Munn asserts:

2. In September, 2024, [Plaintiff] loaned me $100,000 via check payment. I recollect that the check delivered to me by [Plaintiff] was made out to “Max Munn” [sic], individually as payee.

3. On or about March 1, 2025, [Plaintiff] presented me with a Promissory Note of that same date (see [Plaintiff] Aff. at Exh. A), which was prepared by [Plaintiff] and/or his attorney, for signature.

4. On March 12, 2025, [Plaintiff] loaned me an additional $100,000 via check payment. Attached as Exhibit 1 hereto is a true and accurate copy of his check to me dated March 12, 2025, which was also made out to “Max Munn” [sic] individually as payee.

5. Unfortunately my bank was unable to locate the earlier September, 2024 check, but the March 12, 2025 check was identical to the earlier September, 2024 check as regards amount and payee (Mr. Munn Aff. at 1).

In her affirmation, Mrs. Munn asserts:

2. My signature appears on the Promissory Note dated March 1, 2025 ([Plaintiff] Aff. at Exh. A) on the second signature line under the heading “Guarantors”.

3. I signed as a Guarantor at the request of my husband, Max Munn, on March 1, 2025.

4. At no time did [Plaintiff] communicate with me verbally or in writing as regards the loan set forth in the Promissory Note including the recipient of the loan monies, and the Guaranty that I signed.

5. It was my understanding at the time that I signed as a Guarantor that [Plaintiff] had loaned and made payment of $200,000 to MunnWorks, LLC, and that this was the consideration for the Promissory Note, and the Guaranty I was making.

6. When I signed as Guarantor I did not know that [Plaintiff] had not made any such payment of $200,000 to MunnWorks, LLC and it is my understanding now that no such payment, in whole or part, was ever made by [Plaintiff] to MunnWorks, LLC (Mrs. Munn Aff. at 1-2).

Defendants argue that the loan fails as a matter of law because Defendant Munn LLC “never received․any of the monies referenced in the․Note” and even if Defendant Munn LLC had received the monies in issue, “a March 1, 2025 Promissory Note for monies previously loaned in September, 2024 and monies not yet loaned until March 12, 2025 also fails as a matter of law because: (a) past consideration is not valid consideration for a subsequent Promissory Note, and (b) a Promissory Note concerning monies not yet lent similarly lacks consideration” (Defs' Mem. at 1). Defendants further argue that the loan lacks consideration as the two separate checks tendered by Plaintiff were made payable to “ 'Max Munn,' individually as payee” and not to Defendant Munn LLC (id. at 2), as evidenced by the check dated March 12, 2025 made out to “Max Munn” (NYSCEF Doc. No. 15) and Mr. Munn's recollection that the first check was “identical to the earlier September, 2024 check as regards amount and payee” (Mr. Munn Aff. at ¶ 5). According to Defendants, Mr. and Mrs. Munn cannot be held liable as Guarantors “under a fatally defective Promissory Note for a non-existent loan to Borrower MunnWorks, LLC” (Defs' Mem. at 8). In support of their argument that past consideration is not consideration, Defendants rely upon Feliciano v Newton (2022 WL 22921066 [Sup Ct, Bronx County 2022]), and upon the fact that the September 2024 check was tendered six months prior to the March 1, 2025 Note (Defs' Mem. at 6). It is Defendants' contention that this case does not fall within the exception referred to in Feliciano, that is, “when the past consideration is explicitly recited in a writing” (Feliciano, 2022 WL 22921066, at *3), for two reasons: (1) “the consideration expressed in the Promissory Note is $200,000, not past consideration of $100,000” and (2) “the supposed consideration is not proved to have been ever given to Borrower MunnWorks, LLC” (Defs' Mem. at 7). Defendants assert that “a likewise deficiency exists regarding supposed future consideration of an additional $100,000 loan” (id.). In that regard, Defendants contend:

[Plaintiff] apparently predicates a portion of consideration for the Promissory Note upon another loan made by him on March 12, 2025, eleven (11) days after the making of the Promissory Note. This supposed loan, which did not exist as of March 1, 2025, could not be consideration for a March 1, 2025 Promissory Note. A loan/payment not yet in existence, and one which was never made to the Borrower itself [Defendant Munn LLC], simply cannot and does not constitute consideration sufficient to validate a fatally deficient Promissory Note (id.).

Finally, Defendants argue that the Court should search the record and grant summary judgment to Defendants dismissing the Complaint (id. at 2.)

C. Plaintiff's Contentions in Further Support of the Motion

In further support of the motion, Plaintiff submits: (1) his own affirmation dated July 5, 2026 (“Plf's Reply Aff.” [NYSCEF Doc. No. 17]), attesting to his personal knowledge of the facts and circumstances and incorporating the attached Exhibits B-D (NYSCEF Doc. Nos. 18-20); (2) emails dated February 26, 2025 and March 11, 2026 (NYSCEF Doc. No.18), by Plaintiff, Mr. Munn, and Mr. Munn's Assistant at Defendant Munn LLC, Maria Quijada (“Munn LLC Asst. Quijada”); (3) proposed Note in the amount of $250,000.00 (NYSCEF Doc. No. 19); (4) Plaintiff's check dated September 10, 2024 in the amount of $100,000.00 made payable to Defendant Munn LLC (NYSCEF Doc. No. 20); and (5) a Memorandum of Law in Reply (“Plf's Reply Mem.” [NYSCEF Doc. No. 21]).

In his affirmation, Plaintiff argues that the affirmations of Mr. and Mrs. Munn submitted in opposition to Plaintiff's motion “are simply false and contrary to documentary evidence” (Plf's Reply Aff. at ¶ 1). Plaintiff maintains that the emails attached as Exhibit B contradict Mr. Munn's affirmation that Plaintiff presented the Note to Mr. Munn on March 1, 2025 and that the Note was prepared by Plaintiff and/or his attorney (id. at ¶¶ 2-5). Rather, Plaintiff contends that the emails indicate that the Note was neither prepared nor presented by Plaintiff and that the Note was prepared on behalf of Defendant Munn LLC. In that regard, Plaintiff sets forth the following, as detailed in the emails and the attached proposed Note in the amount of $250,000.00 that was sent by email of February 26, 2025 at 10:20 a.m., from Munn LLC Asst. Quijada to Mr. Munn at Defendant Munn LLC and Plaintiff, with the subject “Promissory note” and an attachment “PROMISSSORY Note.pdf” (Plf's Reply Aff. at ¶¶ 2-5; NYSCEF Doc. Nos. 18 at 1, 19). Notably, the proposed Note for $250,000.00 provided, “Original Issue Date: March 1, 2025;” however it was already signed by Max Munn, CEO of Defendant Munn LLC, as Borrower, and by Defendants Mr. and Mrs. Munn, as guarantors, despite the Original Issue date of March 1, 2025 and that the email was sent on February 26, 2025 (Plf's Reply Aff. at ¶ 4; NYSCEF Doc. No. 19). Plaintiff further contends that the subsequent email of February 26, 2025 sent at 10:25 a.m., from Mr. Munn at Defendant Munn LLC to Plaintiff, with the subject “RE: Promissory note” and the message “You need any changes to the below,” is an inquiry as to whether Plaintiff needed any changes to the proposed Note of $250,000.00 that was sent to Plaintiff as an attachment to the previous email of 10:20 a.m. (NYSCEF Doc. No.18 at 2). By email of February 26, 2025 at 11:33 a.m., Plaintiff responded to the aforenoted inquiry, “[m]y Check to you will be $100k[.] It[']s all I have. Anything else is tied up in long term investments with penalties which I do not want to incur” (id. at 4). By email to Plaintiff from Mr. Munn at Defendant Munn LLC on February 26, 2025 at 11:37 a.m., Mr. Munn responded, “Ok thanks” and a later email at 11:38 a.m., “I'll send a corrected note tomorrow. When can you send the below ck?” (id. at 4, 7). Plaintiff states that, contrary to the representation by Mr. Munn in the email of February 26, 2025 at 11:38 a.m., a corrected Note was not received by Plaintiff the following day, and on March 11, 2025 at 2:14 p.m., Plaintiff emailed Munn LLC Asst. Quijada and Mr. Munn at Defendant Munn LLC, with the subject “RE: Promissory note” and a designation “Importance: High,” and the message:

Max:

This must be in place PRIOR to you cashing any check that I provide you. This is critical, you CANNOT cash any funds provided without this in place and signed (see Plf's Reply Aff. at ¶ 8; NYSCEF Doc. No. 18).1

A response to Plaintiff's email was sent from Mr. Munn at Defendant Munn LLC on March 11, 2025 at 2:37 p.m., “I just tried calling and it went directly to voicemail please call me back” (NYSCEF Doc. No.18 at 14). Plaintiff responded by email dated March 11, 2025 at 2:43 p.m., “Im on a call and have been since 10am,” to which Mr. Munn at Defendant Munn LLC responded by email dated March 11, 2025 at 2:57 p.m., “Health/family problem ?” (id. at 13). Mr. Munn at Defendant Munn LLC sent Plaintiff an email dated March 11, 2025 at 2:59 p.m., with the subject “FW: Updated Promissory note” and an attachment “PROMISSSORY Note.pdf” with the message, “I changed it to $200,000 total . Any other changes ?” (id. at 17). Except for the change from the initial proposed Note of $250,00.00 to $200,000.00, the attached Note (NYSCEF Doc. No. 4) is identical to the proposed Note (NYSCEF Doc. No. 19) with an “Original Issue Date: March 1, 2025” (id. at 1; NYSCEF Doc. No. 4 at 1) and the signatures of Max Munn, as CEO of Defendant Munn LLC, as Borrower, and the signatures of Defendants Mr. and Mrs. Munn, as guarantors (see Plf's Reply Aff. at ¶¶ 4, 10, 13).

Plaintiff argues that, contrary to the affirmation of Mr. Munn that the March 12, 2025 check, made payable to Max Munn, was “identical to the earlier September, 2024 check as regards amount and payee” (Mr. Munn Aff. at 1), Plaintiff' submits a copy of the September check which, contrary to Mr. Munn's affirmation, is made payable to “MunnWorks, LLC,” and was not made payable to Max Munn individually (Plf's Reply Aff. at ¶ 14; NYSCEF Doc. No. 20). Plaintiff further avers that the March 12, 2025 check was made payable to Max Munn because “[t]hat is how Max [Mr. Munn] asked me to make out the check” (Plf's Reply Aff. at ¶ 15). Additionally, Plaintiff avers that the March 12, 2025 check and the Note “were executed and exchanged simultaneously” (id.).

In his Reply Memorandum of Law, in response to Defendants' argument that the loan fails for lack of consideration, Plaintiff argues that the documentary evidence establishes that there was “sufficient consideration for the Note” as “at least $100,000.00 was paid directly” to Defendant Munn LLC in the September 10, 2024 check and the second check for $100,000 was made payable to Max Munn, “at Defendants' direction” (Plf's Reply Mem. at 1). As to Defendants' argument that Defendant Munn LLC, as Borrower, is not obligated to make payment on monies that it never received and that likewise any guarantor of such payment is not obligated, Plaintiff argues that “there is no supporting authority” for such argument and that, to the contrary, “[t]he law does not require that all of the borrowed proceeds be paid to or received directly by the primary borrower or obligor before the borrower or the guarantor are liable for repayment”) (Plf's Reply Mem. at 2, citing Gade v Carmili, 68 Misc 3d 1204[A], 2020 NY Slip Op 50860[U] at *2 [Sup Ct, NY County 2020], affd 198 AD3d 456, 457 [1st Dept 2021] [“Contrary to defendant's contention, the fact that the funds were sent directly to the company does not prove that there was no contract between him and plaintiffs”]). Plaintiff argues that “[h]ere, the funds were paid as directed by the borrower, a fact supported by Max Munn's signature on the Note as both the principal of the borrower and as guarantor” (id. at 1-2). As to Defendants' reliance on Feliciano for their argument that the September 10, 2024 check is past consideration and, therefore, cannot support the loan agreement executed in March of 2024, Plaintiff argues that the facts of this case fall within General Obligations Law (“GOL”) § 5-1105 referenced in Feliciano, which expressly provides for an exception to the general rule that past consideration is not consideration except where the past consideration is explicitly recited in a writing (Plf's Reply Mem. at 2, citing Feliciano, 2022 WL 22921066, at *3). Plaintiff maintains that the Note explicitly recites the past consideration as “[i]n consideration for the payment by [Plaintiff] (the 'Holder') of $200,000 to the Borrower” (NYSCEF Doc. No. 4) and that the aforenoted statement in the Note is “ 'presumptively valid for consideration purposes' ” (Plf's Reply Mem. at 3).

Plaintiff requests that the Court sua sponte direct Defendants to show cause, pursuant to 22 NYCRR § 130-1.1(c), why the Court should not award Plaintiff reasonable attorneys' fees and costs or impose sanctions on the basis that “the defense asserted by Defendants is patently and knowingly false and frivolous” (Plf's Reply Mem. at 1). Plaintiff sets forth “the false statements” in Mr. Munn's Affirmation as follows:

First, Max states that the first (September 2024) check was made payable to him “individually” (Munn Aff¶2). False. Documentary evidence proves that this statement made from Max's patently flawed and tainted memory is knowingly false.

Second, Max says that the Note “was prepared by Mr. Kelly [Plaintiff] and/or his attorney for signature.” (Munn Aff ¶3). Wrong again. Both the draft Note (already signed by Defendants) and Max's own emails confirm that the note originated with Max and was corrected by Max or someone at his direction.

Third, Max's bank was “unable to locate” the September 2024 check (Munn Aff ¶5). Really? Max's bank was “unable” to locate a copy of the September 2024 check, but the bank could locate the March 2025 check? The copies of the checks presented as exhibits by both Plaintiff and Defendants show that both parties bank at JPMorgan Chase. How is it that Plaintiff was able to get a copy of that check - less than two years old - but Max's bank was “unable” to locate it? Pure prevarication and diversion - lies! The Federal Bank Secrecy Act § 5311 et seq. requires that banks such as JPMorgan Chase must retain these records for at least five (5) years. See 31 CFR § 1010.410(c).

Fourth, Max states - from memory - that “the March 12, 2025 check was identical to the earlier September, 2024 check as regards amount and payee.” (Munn Aff¶5) False. These statements are incredible on their face. Documentary evidence — documentary in evidence in Defendants' possession custody and control — demonstrates that Munn's statements are knowingly false. Defendants should be sanctioned for such a patent attempt to mislead and defraud this Court(id. at 4-5).

DISCUSSION

CPLR 3213 permits a plaintiff to serve with the summons, a notice of motion for summary judgment in lieu of a complaint and supporting papers in an action based upon an instrument for the payment of money only or upon any judgment. This procedure provides a speedy and effective means for resolving presumptively meritorious claims (see Banco Popular N.A. v Victory Taxi Mgmt., Inc., 1 NY3d 381 [2004]). The proponent of a CPLR 3213 motion may establish a prima facie entitlement to summary judgment by offering proof, in evidentiary form, of the instrument for payment of money or the judgment and the failure of the defendant to pay in accordance with the terms of the instrument or upon the judgment. “Thereafter, 'the burden shifts to the defendant to establish, by admissible evidence, the existence of a triable issue with respect to a bona fide defense'” (Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A., “Rabobank Intl.,” NY Branch v Navarro, 25 NY3d 485, 492 [2015]). A defendant may defeat plaintiff's motion by offering evidentiary proof sufficient to establish the existence of a material issue of fact (see Sisters of Holy Child Jesus at Westbury, Inc. v Pallotta, 131 AD3d 525 [2d Dept 2015], lv denied 26 NY3d 914 [2015] [plaintiff made a prima facie showing pursuant to CPLR 3213 that the subject contracts contained defendant's unconditional promise to pay a sum certain and that defendant failed to make the payments; in opposition to the motion defendant failed to raise a triable issue of fact as to any circumstances which would alter his obligation to pay the amounts due; therefore summary judgment was properly awarded to plaintiff]).

Here, Plaintiff has met his prima facie burden of entitlement to summary judgment by demonstrating that: (1) Defendants were served with a Summons, a Notice of Motion for Summary Judgment in Lieu of Complaint; an Affidavit in Support of the Motion for Summary Judgment in Lieu of Complaint with an Exhibit; and a Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment in Lieu of Complaint (NYSCEF Doc. Nos. 1-5); (2) the action is based upon an instrument for the payment of money, i.e. the Note with a Guaranty by Defendants Mr. and Mrs. Munn of the payment of money owed on the Note by the Borrower Defendant Munn LLC (Exhibit A) (see Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A., “Rabobank Intl.,” NY Branch, 25 NY3d at 492 [“An unconditional guaranty is an instrument for the payment of 'money only' within the meaning of CPLR 3213”]; Lira Holdings, LLC v IGE Group Corp., 235 AD3d 628, 629 [2d Dept 2025] [“ ' “[a] promissory note is an instrument for the payment of money only, provided that it contains an unconditional promise by the borrower to pay the lender over a stated period of time” ' ” and plaintiff established its prima facie entitlement to judgment as a matter of law to recover on a note and guaranty based upon plaintiff's proof of the underlying note and guaranty, the unconditional terms of repayment, the failure to make payment in accordance with the terms of the note and the guaranty, and defendants failed to raise a triable issue of fact in opposition]); and (3) Borrower failed to pay the amount due under the Note on January 21, 2026 and Defendants Mr. and Mrs. Munn failed to make payment in accordance with the terms of their Guaranty (Almark Holding Co., LLC v Abbas, 241 AD3d 1410, 1412 [2d Dept 2025] [“the plaintiff established its prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that the defendant unconditionally guaranteed the payment of the tenant's obligations under the lease, that the tenant defaulted on its obligations under the lease, and that the defendant defaulted on his obligations under the personal guaranty”]). The documentary evidence establishes that, under the terms of the Note, Plaintiff agreed to loan Defendant Munn LLC $200,000.00 and that Defendants Mr. and Mrs. Munn agreed to be bound as guarantors on the Note (NYSCEF Doc. No. 4). Additionally, it is undisputed that Plaintiff tendered two checks for $100,000.00, and the documentary evidence establishes that the first check, dated September 10, 2024, was made payable to Defendant Munn Works LLC as payee (NYSCEF Doc. No. 20) while the second check, dated March 12, 2025, was made payable to Max Munn (NYSCEF Doc. No. 15).

In opposition, Defendants fail to submit evidence raising a triable issue of fact concerning Defendants' liability based on Munn LLC's failure to pay the amount due under the promissory Note and the Guarantors' failure to pay under the terms of the Guaranty (see Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A.,“Rabobank Intl.,” NY Branch, 25 NY3d 485 [summary judgment in lieu of complaint was properly granted based upon defendant's failure to make payment under the terms of the guaranty and defendant's failure to submit evidence raising a material issue of fact in opposition to plaintiff's prima facie showing]).

First, the Court rejects Defendants' argument that Defendant Munn LLC, as Borrower, never received consideration for the agreement and that the loan is non-existent, as belied by the September 10, 2024 check made payable to Defendant Munn LLC (NYSCEF Doc. No. 20) and the surrounding circumstances of this matter, where Mr. Munn was the CEO of Defendant Munn LLC and, after receiving the first $100,000.00 check from Plaintiff, Mr. Munn, as CEO of Defendant Munn LLC, continued to email Plaintiff and negotiate the balance of the loan, which was initially proposed by Mr. Munn at $250,000.00, and was then reduced to $200,000.00, which Note was emailed to Plaintiff by Mr. Munn as CEO of Defendant Munn LLC and specifically referenced the past consideration of $200,000.00 (NYSCEF Doc. Nos. 4, 18). Merely because the second check for $100,000.00 was made payable to “Max Munn” (NYSCEF Doc. No. 15) does not, as Defendants argue, prove that there was no loan agreement between Plaintiff and Defendant Munn LLC (Gade v Carmili, 198 AD3d at 457 [“Contrary to defendant's contention, the fact that the funds were sent directly to the company does not prove that there was no contract between him and plaintiffs”]). Rather, as Plaintiff aptly argues, the facts of this matter, including the September 10, 2024 check, fall within the exception to the general rule that past consideration is not consideration as set forth in GOL § 5-1105, which provides: “[a] promise in writing and signed by the promisor or by his agent shall not be denied effect as a valid contractual obligation on the ground that consideration for the promise is past or executed, if the consideration is expressed in the writing and is proved to have been given or performed and would be a valid consideration but for the time when it was given or performed” (see Rosenbaum v Meyers, 220 AD3d 603 [1st Dept 2023] [summary judgment granted on breach of contract claim where it was established that Acknowledgement of Debt was supported by past consideration in accordance with GOL § 5-1105 as the consideration was expressed in writing and was not vague or imprecise as it was identified in connection with specific property]; Neo Universe Inv. v Ito, 147 AD3d 682, 682-683 [1st Dept 2017] [First Department reverses trial court's dismissal of action seeking payment on note and loan agreement because “plaintiffs were 'not required to demonstrate that there was adequate consideration for the note'․[and] [t]he trial court improperly found that plaintiff's admission that he never gave any money to defendant in 2004 warranted dismissal of the complaint for lack of consideration for the Loan Agreement and Note, both executed in 2004. The Loan Agreement expressly states that plaintiff 'is owed' the amount expressed in that agreement, clearly indicating that the debt owed was preexisting. This past consideration, the receipt and adequacy of which were both acknowledged by defendant in the Loan Agreement, is sufficient to enforce the debt instruments”]; Carrera Casting Corp. v Cord, 106 AD3d 422, 422 [1st Dept 2013] [“The guaranty is supported by past consideration that is clearly and unambiguously expressed in the writing”]; Burke v North Fork Bank & Trust Co., 228 AD2d 461, 461 [2d Dept 1996] [“Contrary to the plaintiff's contention, even if the guaranty were supported by past consideration, under General Obligations Law § 5-1105 such consideration is valid if expressed in a writing․Nor would the fact that the guaranty was executed a few days after the loan documents were executed impair its enforceability”]; Feliciano, 2022 WL 22921066). Furthermore, even if Munn LLC did not receive the benefit of the second check that was made payable to Max Munn, the Note would still be enforceable under GOL § 5-701 as it constitutes a written agreement signed by the party to be charged (i.e., Munn LLC) to answer for the debt of another (i.e., Max Munn).

Second, Defendant Mrs. Munn concedes in her affirmation, “[i]t was my understanding at the time that I signed as a Guarantor that [Plaintiff] had loaned and made payment of $200,000 to MunnWorks, LLC [Defendant Munn LLC], and that this was the consideration for the Promissory Note, and the Guaranty I was making” (Mrs. Munn Aff. at ¶ 5).²

Based on the foregoing, Plaintiff has demonstrated entitlement to a judgment against Defendants Mr. and Mrs. Munn as guarantors on the Note in the amount of $200,000.00, together with interest at a rate of 10% per annum from March 1, 2025.

However, Plaintiff's request that the Court sua sponte direct Defendants to show cause, pursuant to 22 NYCRR 130-1.1(c), why the Court should not award Plaintiff reasonable attorneys' fees and costs or impose sanctions on the basis that the defense asserted by Defendants is patently and knowingly false and frivolous, is unwarranted in this matter (see U.S. Bank N. A. v Zaccagnino, 214 AD3d 754 [2d Dept 2023] [plaintiff's motion to show cause under 22 NYCRR 130-1.1(c) as to why sanctions should not be imposed was properly denied without a hearing as the challenged conduct did not constitute frivolous conduct and the Court acted within its discretion to determine the merits on the papers]).

CONCLUSION

Based on the foregoing, it is hereby

ORDERED that the motion by Plaintiff for an order granting him summary judgment in lieu of complaint is granted to the extent that Plaintiff is awarded summary judgment against Defendants in the principal amount of $200.000.00, together with: (1) interest at a rate of 10% per annum from March 1, 2025 (to be calculated by the Clerk of the Court); and (2) Plaintiff's costs and disbursements as reflected in a bill of costs (to be taxed by the Clerk of the Court); and it is further

ORDERED that counsel for Plaintiff shall serve by NYSCEF a copy of this Decision and Order upon Defendant, with notice of entry, by not later than August 7, 2026 and shall provide proof of service by not later than August 20, 2026;

ORDERED that counsel for Plaintiff shall by August 11, 2026 serve and file a proposed judgment, with the amounts to be awarded for interest, costs and disbursements left blank, noticed for settlement before this Court (and not the Clerk of the Court) on August 21, 2026 (no appearances required), together with a bill of costs.

The foregoing constitutes the Decision and Order of this Court.

FOOTNOTES

1.   Plaintiff asserts that as of March 11, 2026, he had not received the corrected Note and he had not tendered the second check for $100,000.00 (Plf's Reply Aff. at ¶ 8).

2.   Mrs. Munn's Affirmation indicating that, “[w]hen I signed as Guarantor I did not know that [Plaintiff] had not made any such payment of $200,000 to MunnWorks, LLC [Defendant Munn LLC]” (Mrs. Munn Aff. at ¶ 6) is self-serving and without legal basis as “ '[u]nder long accepted principles․one who signs a document is, absent fraud or other wrongful act of the other contracting party, bound by its contents'” ․ ” ” '[A] party is under an obligation to read a document before he or she signs it, and a party cannot generally avoid the effect of a [document] on the ground that he or she did not read it or know its contents” ' ” (Brandywine Pavers, LLC v Bombard, 108 AD3d 1209, 1210 [4th Dept 2013] [citations omitted]; Prompt Mtge. Providers of N. Am., LLC v Zarour, 155 AD3d 912 [2d Dept 2017], lv denied 33 NY3d 907 [2019] [same]). Thus, while Mrs. Munn affirms that “[a]t no time did [Plaintiff] communicate with me verbally or in writing as regards the loan set forth in the Promissory Note including the recipient of the loan monies, and the Guaranty that I signed” (Mrs. Munn Aff. at ¶ 4), it is her responsibility “to 'inquire' further by reading and assessing the proposed terms to determine whether they are acceptable․a person who accepts a written contract without first undertaking this review generally bears the risk that the agreement may contain provisions they do not like or expect” (Wu v Uber Tech., Inc., 43 NY3d 288, 300 [2024]; see Miller v Phoenix Mut. Life Ins. Co., 107 NY 292, 296 [1887] [“It is undoubtedly the general rule that a written contract signed by a party thereto, and containing the terms and conditions of an agreement, is conclusive upon him, and that he will not be permitted to show, in avoidance thereof, that other stipulations were made at the time of or before its execution․Neither is it generally a defense to an action founded upon such agreement that the party did not read the contract, or was ignorant of its contents, or that it was prepared by the party claiming the benefit of it”]).

Gretchen Walsh, J.