Ipayment, Inc. v. Silverman

31 Citing cases

  1. Hope v. Livingston Elec. Assocs.

    2024 N.Y. Slip Op. 30666 (N.Y. Sup. Ct. 2024)

    "While a guarantee of both payment and performance does not qualify as an instrument for the payment of money only under CPLR 3213," it will qualify as one for the payment of money only when it "require[s] no additional performance by plaintiff as a condition precedent to payment or otherwise ma[kes] defendants' promise to pay something other than unconditional." (iPayment, Inc. v Silverman, 192 A.D.3d 586, 587 [1st Dept 2021] [citation omitted] Iv dismissed 37 N.Y.3d 1020 [2021]; see also 45-47-49 Eighth Ave. LLC v Conti, 220 A.D.3d 473, 473 [1st Dept 2023] [holding that "[a]lthough defendant guaranteed both payment and certain performance obligations, this does not preclude summary judgment in lieu of complaint where, as here, performance is not a condition precedent to payment" (citation omitted)].)

  2. Whitestone Plaza, LLC v. You Lin Shen

    2024 N.Y. Slip Op. 5129 (N.Y. App. Div. 2024)

    Executive Order 202.7 closed "all barbershops, hair salons, tattoo or piercing parlors and related personal care services," including "nail technicians, cosmetologists and estheticians, and the provision of electrolysis, [and] laser hair removal services." Here, however, the defendant did not allege that the tenant actually closed in response to Executive Order 202.7 and otherwise offered only conclusory statements and unsubstantiated allegations concerning whether the tenant's adult day care center fell within the class of businesses to which it applied (see Zuckerman v City of New York, 49 N.Y.2d 557; Knickerbocker Retail LLC v Bruckner Forever Young Social Adult Day Care Inc., 204 A.D.3d 536, 538; iPayment, Inc. v Silverman, 192 A.D.3d 586, 587).

  3. 45-47-49 Eighth Ave. v. Conti

    220 A.D.3d 473 (N.Y. App. Div. 2023)   Cited 10 times
    In 45-47-49 Eighth Ave. LLC v Conti, 220 A.D.3d 473, 474 [1st Dept 2023], the First Department simply remanded the issue back to the trial court so that "the parties can further develop the record... for the purpose of applying the Contracts Clause test."

    We agree with plaintiff that the motion court should not have concluded that the parties’ guaranty was not susceptible to relief under CPLR 3213 (see e.g.PDL Biopharma, Inc. v. Wohlstadter, 147 A.D.3d 494, 495, 47 N.Y.S.3d 25 [1st Dept. 2017] ). Although defendant guaranteed both payment and certain performance obligations, this does not preclude summary judgment in lieu of complaint where, as here, performance is not a condition precedent to payment (seeiPayment, Inc. v. Silverman, 192 A.D.3d 586, 587, 146 N.Y.S.3d 51 [1st Dept. 2021], lv dismissed 37 N.Y.3d 1020, 154 N.Y.S.3d 27, 175 N.E.3d 909 [2021] ). The court should have granted partial summary judgment on plaintiff's claims for $37,875.81 for water and sewer charges and repayment of the brokerage commission, as plaintiff established "the existence of the guaranty, the underlying debt and the guarantor's failure to perform under the guaranty" for those amounts ( Cooperatieve Centrale Raiffeisen–Boerenleenbank, B.A., "Rabobank Intl.," N.Y. Branch v. Navarro, 25 N.Y.3d 485, 492, 15 N.Y.S.3d 277, 36 N.E.3d 80 [2015] [internal quotation marks omitted]).

  4. Varadero Master Fund, L.P. v. Gomez

    219 A.D.3d 1240 (N.Y. App. Div. 2023)   Cited 3 times

    Contrary to defendant's further contention, the guaranty specifically states that no notice to or recourse against the note is required for plaintiff to proceed against defendant on the guaranty. Nor did the guaranty of the note's performance obligations create a condition precedent or otherwise render the "promise to pay something other than unconditional" to warrant denial of plaintiff's motion (see e.g.iPayment, Inc. v. Silverman, 192 A.D.3d 586, 587, 146 N.Y.S.3d 51 [1st Dept. 2021], lv dismissed 37 N.Y.3d 1020, 154 N.Y.S.3d 27, 175 N.E.3d 909 [2021] ). We have considered defendant's remaining contentions and find them unavailing.

  5. Perlbinder Holdings LLC v. Patel

    217 A.D.3d 426 (N.Y. App. Div. 2023)   Cited 1 times

    Appeal from order, same court (Kathy J. King, J.), entered June 16, 2021, which denied defendants Himansu Patel, Harshad S. Patel, and Akashi H. Patel's motion to vacate a ruling, same court (Alan C. Marin, J.), entered on or about February 27, 2020, purportedly granting plaintiff's motion for summary judgment in lieu of complaint, unanimously dismissed, without costs, as academic. Plaintiff demonstrated prima facie entitlement to summary judgment in lieu of complaint on its claim to recover on a guaranty that defendants signed, by submitting evidence of their failure to pay, including the guaranty, the underlying lease, the assignment to the commercial tenant, and the lease ledger stating the commercial tenant's rent arrears (seeiPayment, Inc. v. Silverman, 192 A.D.3d 586, 587, 146 N.Y.S.3d 51 [1st Dept. 2021], lv dismissed 37 N.Y.3d 1020, 154 N.Y.S.3d 27, 175 N.E.3d 909 [2021] ). Plaintiff's motion under CPLR 3213 was commenced on the guaranty that defendants undisputedly executed on December 16, 2015, and any references to a guaranty executed on January 20, 2016 appear to be typographical errors that were corrected by the time the motion court issued its order and judgment.

  6. BBM3, LLC v. Vosotas

    216 A.D.3d 403 (N.Y. App. Div. 2023)   Cited 8 times

    Plaintiff satisfied its prima facie burden on its CPLR 3213 motion for summary judgment in lieu of complaint by demonstrating the existence of the guaranties and underlying debts, as well as defendant guarantor's failure to perform under the guaranties, none of which defendant disputed on the original motion (see Cooperatieve Centrale Raiffeseisen-Boerenleenbank, B.A., "Rabobank Intl.," N.Y. Branch v Navarro, 25 N.Y.3d 485, 492 [2015]). CPLR 3213 relief was appropriate despite the completion guaranty's provision requiring some additional performance obligations by the borrower, as the guaranty "include[d] an unconditional obligation to pay" that "required no additional performance by plaintiff as a condition precedent to payment" (iPayment, Inc. v Silverman, 192 A.D.3d 586, 587 [1st Dept 2021], lv dismissed 37 N.Y.3d 1020 [2021][citations omitted]). Furthermore, nothing in the guaranty rendered defendant's promise to pay anything but unconditional (id.).

  7. 75 Commercial, LLC v. Sung An

    209 A.D.3d 574 (N.Y. App. Div. 2022)   Cited 5 times

    Order, Supreme Court, New York County (Frank Nervo, J.), entered on or about January 31, 2022, which, upon granting plaintiff's motion to reargue, adhered to its prior determination denying plaintiff's motion for summary judgment in lieu of complaint ( CPLR 3213 ) and dismissed the action, unanimously reversed, on the law, the motion for summary judgment in lieu of complaint granted, and the matter remanded to Supreme Court for calculation of damages. Plaintiff demonstrated prima facie entitlement to summary judgment on its claim by submitting, among other things, the guaranty agreement signed by defendant guarantor, the lease, and the lease ledger stating the rent arrears of the commercial tenant (seeiPayment, Inc. v. Silverman, 192 A.D.3d 586, 587, 146 N.Y.S.3d 51 [1st Dept. 2021], lv dismissed 37 N.Y.3d 1020, 175 N.E.3d 909 [2021] ). Pursuant to the terms of the lease, plaintiff was not required to allege or prove that the commercial tenant occupied the premises.

  8. Counsel Fin. Holdings v. Sullivan Law, LLC

    208 A.D.3d 1028 (N.Y. App. Div. 2022)   Cited 2 times

    We decline to follow the First Department precedent advanced by defendants (see e.g.PDL Biopharma, Inc. v. Wohlstadter , 147 A.D.3d 494, 495-496, 47 N.Y.S.3d 25 [1st Dept. 2017] ), and we conclude that the guaranty's references to ensuring the performance of the note's obligations do not negate its status as an instrument for the payment of money only (seeCooperatieve Centrale Raiffeisen-Boerenleenbank, B.A., "Rabobank Intl.," N.Y. Branch v. Navarro , 25 N.Y.3d 485, 488, 492, 15 N.Y.S.3d 277, 36 N.E.3d 80 [2015] ; see generallyNorthwoods, L.L.C. v. Hale , 201 A.D.3d 1357, 1357-1358, 158 N.Y.S.3d 701 [4th Dept. 2022] ; Midtown Mkt. Mo. City, Tx. LLC v. Tavakoli , 192 A.D.3d 1646, 1647-1648, 141 N.Y.S.3d 382 [4th Dept. 2021] ). In any event, the guaranty "required no additional performance by plaintiff[ ] as a condition precedent to payment [nor] otherwise made [the guarantors’] promise to pay something other than unconditional" ( iPayment, Inc. v. Silverman , 192 A.D.3d 586, 587, 146 N.Y.S.3d 51 [1st Dept. 2021], lv dismissed 37 N.Y.3d 1020, 154 N.Y.S.3d 27, 175 N.E.3d 909 [2021] [emphasis added and internal quotation marks omitted]).

  9. 274 Madison Co. v. Vieira

    2022 N.Y. Slip Op. 2937 (N.Y. App. Div. 2022)

    Administrative Code § 22-1005 provides that lease guarantors of "businesses that were required to 'cease operation' or 'close to members of the public'" under any of the relevant executive orders (Nos. 202.3, 202.6, and 202.7) issued by the Governor in relation to the Covid-19 outbreak will not be held liable for unpaid rents of those businesses owed between March 7, 2020 and June 30, 2021 (iPayment, Inc. v Silverman, 192 A.D.3d 586 [1st Dept 2021], lv dismissed 31 N.Y.3d 1020 [2021], quoting Administrative Code § 22-1005 [a], [c]). The period for determining whether Administrative Code § 22-1005 applies "is the time of the 'event causing [guarantors] to become liable'" (3rd & 60th Assoc. Sub LLC v Third Ave. M & I, LLC, 199 A.D.3d 601, 602 [1st Dept 2021] [alterations omitted], quoting Administrative Code § 22-1005[2]).

  10. SP 1143 Second LLC v. Marovic

    2024 N.Y. Slip Op. 34402 (N.Y. Sup. Ct. 2024)

    Additionally, the Guaranty contains absolute and unconditional language, including those such as "without exception", "without limitation", and waivers of rights and defenses. Therefore, as the language of the Guaranty includes an unconditional obligation by Marovic to pay the Fixed and Additional Rent, and requires no additional performance as a condition precedent to payment, the document falls within the gambit of an instrument for the payment of money (see iPayment, Inc. v Silverman, 192 A.D.3d 586, 587 [1st Dept 2021]; DB 232 Seigel Mezz LLC v Moskovits, 223 A.D.3d 610, 611 [1st Dept 2024]).