LLC v. AllState Sales Group Inc., Defendant. (2026)

Plaintiff, SiFi Networks Rancho Cordova LLC moves without opposition under CPLR 3213 for summary judgment in lieu of complaint against defendant, AllState Sales Group Inc., seeking damages of $750,000. The motion is denied.

Plaintiff's claim is based on an agreement between the parties that terminated a prior construction contract between the parties in exchange for $750,000, to be paid in installments by defendant to plaintiff. (See NYSCEF No. 3 at 3-4 [mem. of law]; NYSCEF No. 7 [termination agreement].) Plaintiff has not, however, established that the termination agreement on which it relies 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].) Here, the parties initially entered into a master contract and an agreement implementing that master contract (providing details about performance, scope of work, and the like). (See NYSCEF No. 5 [master contract]; NYSCEF No. 6 [scope-of-work agreement].) The parties' later termination agreement recites that the scope-of-work agreement is terminated in exchange for $750,000, "[s]ubject to the terms and conditions" of the master contract. (NYSCEF No. 7 at § 1.) Thus, on its face, the contract on which plaintiff relies provides that the termination of the scope-of-work agreement, and the $750,000 payment from defendant to plaintiff, are made conditional on obligations set out in a separate document (the master contract). The need to consult and interpret that separate document to determine whether defendant necessarily owes the $750,000 at issue "exceeds any permissible limited reference to outside sources under CPLR 3213." (PDL Biopharma, Inc. v Wohlstadter, 147 AD3d 494, 496 [1st Dept 2017].)

A further condition in the termination agreement furnishes an independent reason why CPLR 3213 treatment is impermissible here. The agreement provides that defendant is entitled to an offset against the termination fee for "any valid and approved payment applications that are outstanding and due payment" from plaintiff to defendant. (NYSCEF No. 7 at 2 § 2.) This contractual provision for the possibility of offsetting payments from plaintiff to defendant—and thus the need to consult other documents and records to determine defendant's entitlement to those offsetting payments (and their amount)—takes this agreement outside the scope of CPLR 3213. (See P1 Fin. v Evergreen Bldrs. & Constr. Servs., Inc., 232 AD3d 549, 550 [1st Dept 2024] [holding that a premium-finance agreement "does not qualify for summary treatment under CPLR 3213" when it provides that defendant is entitled to "receive a credit" against "any outstanding balance of the loan" for unearned insurance premiums returned to plaintiff by the insurer, because "outside proof [is] required to determine if there is any deficiency after payment of the unearned premiums"].)

Plaintiff contends that this term of the agreement does not preclude the availability of CPLR 3213, on the ground that "no setoffs . . . apply to the Termination Fee because [defendant] has not completed the punch-list items identified in Exhibit A to the Termination Agreement despite repeated demands." (NYSCEF No. 3 at 4.) This contention is without merit. When assessing whether a contract may be enforced through CPLR 3213, the question is "not what the instrument may be reduced to by part performance or by elision of a portion of it but rather how the instrument read in the first instance." (Weissman v Sinorm Deli, Inc., 88 NY2d 437, 445 [1996] [internal quotation marks and alteration omitted].) Thus, "the availability of CPLR 3213 can never depend upon the occurrence (or nonoccurrence) of any unrelated future event"; the instrument relied upon must instead "conform to the statutory definition when read immediately upon execution." (Kerin v Kaufman, 295 AD2d 336, 338 [1st Dept 2002].) The termination agreement at issue in this case did not come within the scope of CPLR 3213 at its execution.

Accordingly, it is

ORDERED that plaintiff's motion for summary judgment in lieu of complaint is denied; and it is further

ORDERED that this action is converted into a plenary action, in which plaintiff's motion papers are deemed a complaint with supporting exhibits; and it is further

ORDERED that defendant may answer or otherwise respond within 20 days of service of a copy of this order with notice of its entry; and it is further

ORDERED that if defendant does not serve answering/responsive papers within that time, plaintiff shall, within 45 days of service of notice of entry, either move for default judgment or otherwise notify this court of how it intends to proceed in this action (by letter, e-filed on NYSCEF and emailed to SFC-Part7-Clerk@nycourts.gov); and it is further

ORDERED that plaintiff shall serve notice of entry on defendant by email directed to defendant's last-known counsel and certified mail, return receipt requested, directed to defendant's last-known address.

DATE 3/31/2026

Gerald Lebovits, J.