In an action for non-payment of loan obligations created under loan documents, a prima facie case is established through proof of an instrument requiring from the defendant the payment of money only, and a failure to make the payments called for under the instrument ( see e.g. Interman Indus. Products, Ltd. v R.S.M. Electron Power, Inc., 37 NY2d 151, 154, citing Seaman-Andwall Corp. v Wright Machine Corp., 31 AD2d 136 [1st Dept 1968], affd 29 NY2d 617; accord Banco Popular North America v Victory Taxi Mgt., Inc., 1 NY3d 381; Weissman v Sinorm Deli, Inc., 88 NY2d 437, 444). Similarly, in an action on a personal guaranty, a prima facie case is established through proof of (1) the guaranty; (2) a default on the underlying obligation secured by the guaranty; and (3) the defendant's failure to honor the guaranty ( see e.g. Valencia Sportswear, Inc. v D.S.G. Enterprises, Inc., 237 AD2d 171 [1st Dept 1997]; European American Bank Trust Co. v Schirripa, 108 AD2d 684 [1st Dept 1985]). A promissory note, containing on its face an unequivocal and unconditional promise to repay the holder and setting forth all of the relevant terms of repayment, represents the "prototypical example" of an instrument for the payment of money only ( Weissman v Sinorm Deli, Inc., 88 NY2d at 444; Matas v Alpargatas S.A.I.C., 274 AD2d 327 [1st Dept 2000]).
Appeal from order, same court and Justice, entered on or about June 15, 2022, which granted plaintiff's motion for summary judgment pursuant to CPLR 3213, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. Plaintiff demonstrated prima facie entitlement to summary judgment in lieu of complaint as against Sasson by proffering evidence of the promissory note from defendant Underboss Productions, LLC to plaintiff, Underboss's nonpayment under the note, the guaranty signed by Sasson, and Sasson's nonpayment under the guaranty (seeCooperatieve 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] ; Valencia Sportswear , Inc. v. D.S.G. Enters., Inc., 237 A.D.2d 171, 171, 655 N.Y.S.2d 13 [1st Dept. 1997] ).
To establish prima facie entitlement to summary judgment in lieu of complaint under CPLR § 3213 based on the Loan Documentation and Guaranty Agreement, Plaintiffs must establish that the agreements are instruments for the payment of money only and proof of Defendants' nonpayment. See 27 W. 72nd St. Note Buyer LLC v. Terzi, 194 A.D.3d 630, 631 (1st Dept. 2021); Valencia Sportswear, Inc. v. D.S.G. Enterprises, Inc.,237 A.D.2d 171,171 (1st Dept. 1997) (internal citations omitted).
The second cause of action in the third party complaint against Kaufman alleges a breach of guarantee. In an action on a personal guarantee, a prima facie case is established through proof of (1) the guarantee; (2) a default on the underlying obligation secured by the guarantee; and (3) the defendant's failure to honor the guarantee (see e.g.Valencia Sportswear, Inc. v. D.S.G. Enter., Inc. , 237 AD2d 171 [1st Dept 1997] ). In the instant case, defendants/third-party plaintiffs (Gelwan and Rockaways) failed to establish their case because the demand was made prior to any failure by plaintiff/third-party defendant (Kaufman) to honor the underlying obligation.
DISCUSSION "On a motion for summary judgment to enforce a written guaranty, all that the creditor need prove is an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty" (City of New York v. Clarose Cinema Corp., 256 A.D.2d 69, 71 [1st Dept 1998] ; accord Kensington House Co. v. Oram, 293 A.D.2d 304, 305 [1st Dept 2002] ; Valencia Sportswear, Inc. v. D.S.G. Enter., Inc., 237 A.D.2d 171, 171 [1st Dept 1997] ). Thus, submission of an unconditional guaranty along with an affidavit of nonpayment is sufficient for a judgment under CPLR 3212 (European Am. Bank & Trust Co. v. Schirripa, 108 A.D.2d 684, 684 [1st Dept 1985] ).
DISCUSSION "On a motion for summary judgment to enforce a written guaranty, all that the creditor need prove is an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty" (City of New York v Clarose Cinema Corp., 256 AD2d 69, 71 [1st Dept 1998]; accord Kensington House Co. v Oram, 293 AD2d 304, 305 [1st Dept 2002]; Valencia Sportswear, Inc. v D.S.G. Enter., Inc., 237 AD2d 171, 171 [1st Dept 1997]). Thus, submission of an unconditional guaranty along with an affidavit of nonpayment is sufficient for a judgment under CPLR 3212 (European Am. Bank & Trust Co. v Schirripa, 108 AD2d 684, 684 [1st Dept 1985]).
An unconditional guarantee qualifies as an instrument for the payment of money only under CPLR 3213 (European American Bank & Trust Co. v. Schirripa, 108 A.D.2d 684 [1st Dept., 1985]). In an action on a personal guarantee, a prima facie case is established through proof of: 1) the executed guarantee; 2) a default on the underlying obligation secured by the gurantee; and 3) the defendant's failure to honor the guarantee (Valencia Sportswear, Inc. v. D.S.G. Enterprises, Inc., 237 A.D.2d 171 [1st Dept., 1997]).
In an action for non-payment of loan obligations created under loan documents, a prima facie case is established through proof of the note at issue, and the failure of the obligee to make payment in accordance with its terms ( see e.g. Interman Indus. Prod., Ltd. v R.S.M. Electron Power, Inc., 37 NY2d 151, 154, citing Seaman-Andwall Corp. v Wright Mach. Corp., 31 AD2d 136 [1st Dept 1968], affd 29 NY2d 617; accord Banco Popular North America v Victory Taxi Mgt., Inc., 1 NY3d 381; Weissman v Sinorm Deli, Inc., 88 NY2d 437, 444). Similarly, in an action on a personal guarantee, a prima facie case is established through proof of (1) the guarantee; (2) a default on the underlying obligation secured by the guarantee; and (3) the defendant's failure to honor the guarantee ( see e.g. Valencia Sportswear, Inc. v D.S.G. Enter., Inc., 237 AD2d 171 [1st Dept 1997] [submission of an unconditional guarantee along with an affidavit of nonpayment is sufficient for a judgment under CPLR 3212]; see also SCP (Bermuda) Inc. v Bermudatel Ltd., 224 AD2d 214 [1st Dept], lv dismissed 87 NY2d 1056; European American Bank Trust Co. v Schirripa, 108 AD2d 684 [1st Dept 1985]). A moving party is entitled to summary judgment unless the other party produces evidentiary proof sufficient to raise an issue of fact regarding a defense to the instrument ( see Quest Commercial, LLC v Rovner, 35 AD3d 576 [2d Dept 2006]).
In a case similar to the one at bar, a simple loan agreement for the payment of money qualified for a CPLR 3213 motion because no proof outside of the face of the document itself, other than that of nonpayment, was needed to prove a prima facie case. Valencia Sportswear, Inc. v. D.S.G. Enterprises, Inc., 237 A.D.2d 171 (1st Dept. 1997).
A Guarantee is an instrument for the payment of money only, qualifying for judgment under CPLR 3213, if no proof outside the face of the Guarantee, other than of non-payment, is needed to prove a prima facie case. ( Valencia Sportswear, Inc. v D.S.G. Enterprises, Inc., 237 A.D.2d 171 [1st Dep't 1997], relying upon Chemical Bank v Nemeroff, 650 N.Y.S.2d 110 [1st Dep't 1996].) In essence, a Plaintiff must bring forth evidence of "the notes and guarantees, and defendants' default under their terms, thereby qualifying the documents for accelerated judgment under CPLR 3213"