MACEDONIO FELIX PRIMITIVO FELIX v. KASIYA DJOKIC SIRIWADEE JAREEPRASIT (2026)

This is a motion-action brought under CPLR 3213 to enforce a settlement agreement. Plaintiffs, Juan Carlos Serrano, Macedonio Felix, and Primitivo Felix, move without opposition for summary judgment in lieu of complaint against defendants, One More Thai Corp., Kasiya Djokic, and Siriwadee Jareeprasit. The motion is denied; and the action is dismissed as against defendants Djokic and Jareeprasit.

1. Plaintiffs have not established that the settlement agreement on which they rely is an instrument for the payment of money only, as required to qualify for the accelerated procedure provided by CPLR 3213.

If the instrument relied on by the movant "requires something in addition to defendant's explicit promise to pay a sum of money, CPLR 3213 is unavailable." (Weissman v Sinorm Deli, Inc., 88 NY2d 437, 444 [1996].) Many of the terms of the settlement agreement at issue address issues relating to defendant One More Thai's payment in installments of the settlement amount. (See NYSCEF No. 4 at 2-4.) However, the settlement agreement also contains a mutual non-disparagement clause. (See id. at 4 § 12.) An agreement making payment conditional on compliance with a non-disparagement provision is enforceable through CPLR 3213. (See Kerin v Kaufman, 296 AD2d 336, 337-338 [1st Dept 2002].) Plaintiffs do not attempt to establish that One More Thai's payment obligation is unaffected by whether plaintiffs comply with the terms of that clause. Absent that showing, plaintiffs cannot obtain summary judgment in lieu of complaint. (See Park Union Condominium v 910 Union St., LLC, 140 AD3d 673, 673-674 [1st Dept 2016].)

2. Even if the settlement agreement were an instrument for the payment of money only, plaintiffs have not provided proof in admissible form of One More Thai's breach of its settlement obligations. Plaintiffs rely on an affirmation of their current counsel. (See NYSCEF No. 3.) But that affirmation represents that it is based on current counsel's review of the records of the former counsel that had executed the agreement—not on current counsel's personal knowledge. (See NYSCEF No. 3 at ¶ 2.) And the affirmation does not attach bank statements, a ledger maintained by former counsel, or other documentary evidence of defendants' breach. Counsel's representations, standing alone, are inadmissible hearsay that cannot support summary judgment. (See Wells Fargo Bank, NA v Oziel, 196 AD3d 618, 621 [2d Dept 2021]; Bank of NY Mellon v Gordon, 171 AD3d 197, 205-206 [2d Dept 2019].)

3. This court lacks personal jurisdiction over defendant Jareeprasit. A CPLR 3213 motion may not be made returnable before the defendant's time to appear under CPLR 320 expires. (See Alpine Capital Bank v Estate of Shiah, 2020 NY Slip Op 50587[U], at *3 [Sup Ct, NY County May 20, 2020].) Plaintiffs served Jareeprasit by leave-and-mail service under CPLR 308 (2) on February 18, 2026; and filed the affidavit of service on February 18. (See NYSCEF No. 10.) Jareeprasit has 40 days from the filing of the affidavit of service to appear and respond—i.e., until March 30, 2026. (See CPLR 320 [a].) But plaintiffs made this motion returnable on February 26, 2026, 32 days earlier. (See NYSCEF No. 2 at 1.) Plaintiffs' failure to afford Jareeprasit sufficient advance notice of the motion, as required by CPLR 320, is a "fatal jurisdictional defect." (Bhanti v Jha, 140 AD3d 685, 686 [2d Dept 2016].)

With respect to defendant Djokic, plaintiffs have not provided an affidavit of service. Given the court's determination that plaintiffs have not shown entitlement to summary judgment regardless, and the absence of a jurisdictional defect evident on the face of the record, the court declines to reach at this time the issue of personal jurisdiction over Djokic.

4. In any event, plaintiffs' claims against Jareeprasit and against Djokic fail as a matter of law. The settlement agreement imposes payment obligations on One More Thai, in particular—not on all three defendants. (See NYSCEF No. 4 at ¶ 3.) And it provides that in the event of an uncured default by One More Thai, plaintiffs "shall have the right to seek enforcement of this Agreement on notice to Defendants against Defendant Corporation." (Id. at ¶ 17 [emphasis added].) Jareeprasit and Djokic thus may not be held responsible under the settlement agreement for One More Thai's payment defaults. In these circumstances, it is clear on the face of the record that plaintiffs' claims against the individual defendants fail to state a cause of action. Those claims therefore must be dismissed.

Accordingly, it is

ORDERED that plaintiffs' CPLR 3213 summary-judgment motion is denied; and it is further

ORDERED that plaintiffs' claim against defendant Siriwadee Jareeprasit is dismissed for lack of personal jurisdiction and failure to state a cause of action, no costs; and it is further

ORDERED that plaintiffs' claim against defendant Kasiya Djokic is dismissed for failure to state a cause of action, no costs; and it is further

ORDERED that plaintiffs' claim against defendant One More Thai Corp. is severed and shall continue; and it is further

ORDERED that plaintiffs' motion papers are deemed the complaint and supporting exhibits as against defendant One More Thai Corp.; and it is further

ORDERED that upon service of a copy of this order with notice of its entry, defendant One More Thai Corp. shall have 30 days from service to appear and respond to the complaint; and it is further

ORDERED that plaintiffs shall serve a copy of this order with notice of its entry on all defendants by certified mail, return receipt requested, directed to their respective last-known addresses; and on the office of the County Clerk (using the NYSCEF filing event "Notice to the County Clerk - CPLR § 8019 (c)"), which shall enter judgment accordingly.

DATE 2/26/2026

Gerald Lebovits, J.