In this breach of contract action, the plaintiff limited liability company, sponsor of a condominium project on East 23rd Street in Manhattan, is seeking reimbursement from the defendant condominium unit owners for expenses it incurred in obtaining real estate tax abatements on their behalf. The plaintiff moves for summary judgment in lieu of a complaint pursuant to CPLR 3213. The motion is denied since the affidavits, documents and other exhibits upon which the plaintiff relies to establish its claim bring the action outside the limited parameters of that statute.

In its moving papers, the plaintiff submits an affirmation of its attorney and an affidavit of its managing member Daniel Perla to support its claim that the offering plan and bylaws of the subject condominium project obligate the defendants to reimburse it in the sum of $7,855.22. However, the court notes that the affirmation and affidavit are 32 and 17 pages long, [*2]respectively, and are largely devoted to explaining the process of how the plaintiff's claim arises and the meaning of the various relevant provisions of the offering plan dated January 18, 2005, and the condominium by-laws, while also relying upon 26 other attached exhibits. These include the parties' contract for the purchase of unit 7F, dated March 3, 2005, bank documents and cancelled checks, New York City Department of Finance tax documents for the building, documents from the New York State Board of Real Property Services, various documents and correspondence from the New York City Department of Housing Preservation and Development showing, among other things, that construction of the building was completed, a certificate of occupancy was issued and a tax abatement was obtained on December 14, 2006, and various correspondence between the parties and counsel over the course of several years concerning the tax abatement and the defendant's alleged default in reimbursing the plaintiff for its share of the expenses incurred in obtaining it.

It is well settled that a plaintiff may seek relief under CPLR 3213 "[w]hen [the] action is based upon an instrument for the payment of money only." See HSBC Bank USA v Community Parking Inc., 108 AD3d 487 (1st Dept. 2013); Allied Irish Banks, P.L.C. v Young Men's Christian Assn. of Greenwich, 105 AD3d 516 (1st Dept. 2013); German Am. Capital Corp. v Oxley Dev. Co., LLC, 102 AD3d 408 (1st Dept. 2013), lv denied 21 NY3d 862 (2013). The purpose of the statute "is to provide an accelerated procedure where liability for a certain sum is clearly established by the instrument itself." G.O.V. Jewelry, Inc. v United Parcel Service, 181 AD2d at 517 (1st Dept. 1992). In order to establish a prima facie entitlement to summary judgment in lieu of a complaint, a plaintiff must produce an instrument containing an "unequivocal and unconditional obligation to repay" (Zyskind v FaceCake Mktg. Tech., Inc., 101 AD3d 550, 551 [1st Dept. 2012]), one which by its terms is for the payment of money only over a stated period of time (see Bloom v Lugli, 81 AD3d 579,580 [2nd Dept. 2011]), and establish that the defendant failed to pay in accordance with those terms. See Zyskind v FaceCake Mktg. Tech., Inc., supra; Rhee v Meyers, 162 AD2d 397 (1st Dept. 1990).

Under these guidelines, a promissory note may qualify as such an instrument, so long as the plaintiff submits proof of the note and of the defendant's failure to make payment. See Bonds Financial, Inc. v Kestrel Technologies, LLC, 48 AD3d 230 (1st Dept. 2008); Seaman-Andwall Corp. v Wright Machine Corp., 31 AD2d 136 (1st Dept. 1968). It is also been held that an independent put agreement (Nordea Bank Finland PLC v Holten, 84 AD3d 589 [1st Dept. 2001]), an interest rate swap agreement (Allied Irish Banks, P.L.C. v Young Men's Christian Assn. of Greenwich, 105 AD3d 516 [1st Dept. 2013]) or an unconditional guaranty (Bank of Am., N.A. v Solow, 59 AD3d 304, 305 [1st Dept. 2009]) may be instruments for the payment of money only for purposes of CPLR 3213. A simple letter may also be a qualifying instrument so long as the writing unconditionally acknowledges a debt and the amount and terms of repayment are settled and stated. See Blum, Gersen & Stream v 346 East 72nd Street Assocs., 172 AD2d 444 (1st Dept. 1991). Paramount is that the terms of repayment must be undisputed and unconditional. See Baldeo v Rambaran, 107 AD3d 924 (2nd Dept. 2013).

Conversely, "[w]here the instrument requires something in addition to defendant's explicit promise to pay a sum of money, CPLR 3213 is unavailable." Weissman v Sinorm Deli, 88 NY2d 437, 444 (1996); see Bloom v Lugli, supra. A plaintiff's prima facie proof "cannot be drawn from sources outside the agreement itself." Rhee v Meyers, supra at 398. Thus, CPLR [*3]3213 may not be used where "extrinsic evidence is required to determine the amount" due and where there is "no specific date by which payment in full had to be made." Ian Woodner Family Collection, Inc. v Abaris Brooks, Ltd., 284 AD2d 163, 164 (1st Dept. 2001). That is, any outside proof "other than simple proof of payment" and default (Goodyear Tire & Rubber Co. v Azzaretto, 103 AD3d 880 (2nd Dept. 2013) exceeds the permissible use of extrinsic proof on a CPLR 3213 motion." Ian Woodner Family Collection, Inc. v Abaris Brooks, Ltd., supra at 164.

Applying these principles in Bloom v Lugli, supra, the Second Department held that a joint venture agreement for the development of condominium was not a qualifying instrument for purposes of CPLR 3213 since it required and was contingent upon the plaintiff attorney obtaining certain "zoning and development approvals" and upon his continued legal representation of the defendants and the venture. Because the claim required "outside proof" to "determine if the plaintiff satisfied his obligations pursuant to the agreement" and was conditioned upon this attorney's ongoing participation, the action fell outside the scope of the statute. Bloom v Lugli, supra at 581. Similarly, in Bonds Financial, Inc. v Kestrel Technologies, LLC, supra, the First Department found that, since the plaintiff's breach of contract claim was based upon an acceleration clause in the subject credit agreement, resort to extrinsic evidence would be necessary to determine whether a default event occurred and, for that reason, summary judgment under CPLR 3213 was inappropriate. The same reasoning applies here.

The plaintiff's claim is clearly not based upon an instrument for the payment of money only within the meaning of the statute. See HSBC Bank USA v Community Parking Inc., supra; Allied Irish Banks, P.L.C. v Young Men's Christian Assn. of Greenwich, supra; German Am. Capital Corp. v Oxley Dev. Co., LLC, supra. First, there is no dispute that, in order to trigger the defendant's obligation to reimburse, the plaintiff had to perform certain acts by completing the project, obtaining a certificate of occupancy and then applying to the local taxing authorities, after which events the taxing authority had to then decide to grant the petitioner's application. Indeed, in its moving papers, the plaintiff confirms that "at the time the offering plan was drafted and submitted to the Attorney General for the State of New York, there was no guarantee that the future unit owners would receive a tax abatement" and that the provision obligating the future unit owners to reimburse the petitioner arose "if and only if the tax abatement was actually obtained." Such a contingency requires outside proof of compliance and therefore precludes relief under CPLR 3213. See Bloom v Lugli, supra.

Morever, unlike the agreement at issue in Bank of Am., N.A. v Solow, supra, the amount due under the instant agreement is not "plain on its face." Id at 305. Based on the results of the action of the plaintiff and the determination of the taxing authority, the plaintiff then had to compute and allocate the costs among the various unit owners to determine the precise amount owed by each. Thus, even, by the very terms of the purported arrangement, the core element of the claim, the amount owed by the defendants, was to remain undetermined for an indefinite time period, if the obligation to reimburse arose at all. This, too, takes the matter outside the scope of CPLR 3213 since "extrinsic evidence is required to determine the amount" due and there is "no specific date by which payment in full had to be made." See Ian Woodner Family Collection, Inc. v Abaris Brooks, Ltd., supra at 164.

Indeed, the very fact that the plaintiff has had to produce and submit numerous documents, comprising some 28 exhibits, along with lengthy affidavits to piece together and [*4]explain its claim demonstrates that it was not relying upon an "independent" instrument (Nordea Bank Finland PLC v Holten, supra at 590) containing an "unequivocal and unconditional obligation." Zyskind v FaceCake Mktg. Tech., Inc., supra at 551. Rather, it was relying upon the very type of outside proof or extrinsic evidence that takes the claim outside the statute. See Ian Woodner Family Collection, Inc. v Abaris Brooks, Ltd., supra; Rhee v Meyers, supra. While such documents indicate that the plaintiff may have a claim against the defendants, they also demonstrate that plaintiff can not proceed on its breach of contract claim under CPLR 3213.

For these reasons, the plaintiff's motion for summary judgment in lieu of a complaint is denied, without prejudice, notwithstanding the absence of opposition by the defendants. The motion papers are deemed to be the complaint and, since proof of service of the motion papers was submitted, the defendants shall answer within 20 days. See CPLR 3213; Whitley v Pieri, 48 AD3d 1175 (4th Dept. 2008). Should the defendants fail to answer, the denial of the instant motion does not preclude the plaintiff from moving, upon proper papers, for a default judgment pursuant to CPLR 3215, if it is so advised. See The Cadle Company v Ayala, 47 AD3d 919 (2nd Dept. 2008).

Accordingly, it is:

ORDERED that the plaintiff's motion for summary judgment in lieu of a complaint

pursuant to CPLR 3213 is denied, and it is further,

ORDERED that the motion papers are deemed to be the complaint and the defendants shall answer within 20 days of service upon them of this order with notice of entry.

This constitutes the Decision and Order of the court.

Dated: February 11, 2014_________________________________

NANCY M. BANNON, J.C.C.