Opinion
Index No. 653035/2023 Motion Seq. No. 001
12-06-2023
ARM ENERGY HOLDINGS, LLC Plaintiff, v. NAUTILUS ENVIRONMENTAL OHIO 1, LLC, Defendant.
Unpublished Opinion
MOTION DATE 06/23/2023
DECISION + ORDER ON MOTION
HON. JOEL M. COHEN JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 16, 20, 21, 25, 26, 27 were read on this motion for SUMMARY JUDGMENT IN LIEU OF COMPLAINT
Plaintiff ARM Energy Holdings, LLC's ("Plaintiff' or "ARM") motion for summary judgment in lieu of a complaint against Defendant Nautilus Environmental Ohio 1, LLC ("Defendant" or "Nautilus") is granted.
Pursuant to CPLR 3213, a party may commence an action by motion for summary judgment in lieu of complaint when the action is "based upon an instrument for the payment of money only or upon any judgment" (Oak Rock Fin., LLC v Rodriguez, 148 A.D.3d 1036, 1039 [2d Dept 2017]). An "instrument for the payment of money only" is one that "requires the defendant to make a certain payment or payments and nothing else" (Seaman-Andwall Corp. v Wright Mach. Corp., 31 A.D.2d 136, 137 [1st Dept 1968]; Weissman v. Sinorm Deli, Inc., 88 N.Y.2d 437, 444 [1996]). "It is well settled that a promissory note, as an instrument for the payment of money only, is entitled to the expedited procedure detailed in CPLR 3213" (R-H-D Const. Corp, v. Miller, 222 A.D.2d 802, 803 [3d Dept 1995]).
Plaintiff submits the affidavit of its Chief Financial Officer Charles E. Dunne, Jr. with exhibits in support (NYSCEF 3). Plaintiff and Defendant entered a Promissory Note dated June 8, 2021 for $720,000 ("ARM Note" [NYSCEF 4]). Plaintiff and non-party BSR Holding I, LLC also entered a Promissory Note dated June 8, 2021 for $720,000 ("BSR Note" [NYSCEF 5] and with the ARM Note the "Notes"). In December of 2021, BSR assigned to ARM a 37.25% interest in the BSR Note (NYSCEF 8).
By letter dated September 20, 2022, Plaintiff served a notice of default under the ARM Note and demanded payment by December 8, 2022 (NYSCEF 9). By email dated September 20, 2022, Defendant's representative responded that "[i]t is our intent to get this settled prior to December 8th in an amical [sic] manner" (NYSCEF 10).
Defendant did not make payment on the Notes upon their maturity. Accordingly, Plaintiff served a Notice of Default and Demand for Payment on both Notes dated December 29, 2022 (NYSCEF 11). This action was commenced on June 23, 2023 (NYSCEF 1-15). According to Mr. Dunne's calculations, Plaintiff was owed $2,865,861.00 as of June 19, 2023 (NYSCEF 15). Plaintiff also seeks costs and fees, including reasonable attorney's fees, under the Notes. Plaintiffs motion was adjourned twice on consent; first from July 21, 2023 to September 11, 2023 (NYSCEF 16) and again to September 25, 2023 (NYCEF 21). On September 8, 2023, Defendant moved for a third extension by proposed order to show cause NYSCEF 23). On September 13, 2023, the parties filed a stipulation seeking to adjourn the return date to October 5, 2023 (NYSCEF 25). However, the Motion Submissions Part informed the parties that return dates can be adjourned on consent for up to sixty days and instead adjourned the return date to October 2, 2023 (NYSCEF 26).
In light of the Motion Submissions Part's notice, the Court declined to sign Defendant's proposed order to show cause for an extension of time (NYSCEF 28). Defendant did not file any opposition. On September 29, 2023, Plaintiff filed a reply asking that its motion be granted on default (NYSCEF 27). The return date has passed, and no further submissions have been made in the intervening two months.
The Court finds that Plaintiff has established a prima facie case through the submission of the Notes and other documents establishing Defendant's default (Jinmei Yang v Shang Dai, 193 A.D.3d 475, 476 [1st Dept 2021] citing Zyskind v. FaceCake Mktg. Tech., Inc., 101 A.D.3d 550, 551 [1st Dept 2012]). Defendant has failed to raise any issue of fact to avoid summary judgment on liability or damages (Xiao v Ivy Fund Mgr. LLC, 2022 WL 17818960 [N.Y. Sup Ct, New York County 2022]). The Court will determine the amount of reasonable attorney's fees prior to entering judgment (Simon v Indus. City Distillery, Inc., 159 A.D.3d 505, 505 [1st Dept 2018]).
Accordingly, it is
ORDERED that Plaintiffs motion for summary judgment in lieu of a complaint is GRANTED; it is further
ORDERED that Plaintiff settle a judgment within ten (10) days including an application for reasonable costs and attorney's fees and that Defendant submit any opposition and proposed counter-judgment within five (5) days thereafter (the Court encourages the parties to agree on a form of judgment without prejudice to either party's appellate rights).
This constitutes the decision and order of the Court.