The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 3, 4, 5, 6, 7, 8, 9, 10, 14, 15, 16 were read on this motion for SUMMARY JUDGMENT IN LIEU OF COMPLAINT.

Plaintiff, 1277 Realty Co LLC, brings this motion for summary judgment in lieu of complaint under CPLR 3213 against defendant, Richard Kirschenbaum, seeking unpaid rent and additional rent allegedly owed by Kirschenbaum as the guarantor on a commercial lease. The motion is granted, but only as to a portion of the sum claimed by 1277 Realty. Kirschenbaum's obligation to pay the remainder is not apparent on the face of the guaranty Kirschenbaum executed. This court accordingly converts 1277 Realty's claim for that remainder into a plenary action.

In 2017, 1277 Realty leased commercial space to nonparty Shoe Box Street Holdings, LLC. Kirschenbaum executed a contemporaneous guarantee of Shoe Box's obligations under that lease.

Shoe Box failed to pay rent owed under the lease. In April 2019, 1277 Realty brought a nonpayment proceeding in Housing Court, seeking possession of the premises and an award of $161,000 in unpaid rent for the period October 1, 2018, to April 1, 2019. In June 2019, Housing Court granted 1277 Realty judgment for possession on default.

1277 Realty now brings this motion for summary judgment in lieu of complaint under CPLR 3213 against Kirschenbaum as guarantor. 1277 Realty seeks a total amount of $286,169.83, comprising (i) the base rent owed at the time 1277 Realty brought the nonpayment proceeding in Housing Court; (ii) the base rent that subsequently came due for the balance of the [*2]lease term; (iii) late fees owed under the lease for unpaid rent; (iv) additional rent in the form of repair costs for the premises that 1277 Realty incurred after reclaiming possession; (v) legal fees incurred by 1277 Realty in enforcing the terms of the lease and the guarantee.

CPLR 3213 provides an accelerated procedure for prosecuting an action "based upon an instrument for the payment of money only," combining pleading and dispositive motion practice. (See Weissman v Sinorm Deli, Inc., 88 NY2d 437, 443 [1996].) The threshold requirement that the instrument be one "for the payment of money only," although "seemingly straightforward," is also "stringent." (Id. at 443-444.) To satisfy this requirement, a plaintiff must be relying on "a written unconditional instrument, evidencing an obligation to pay a sum at a certain time or over a stated period." (Maglich v. Saxe, Bacon & Bolan, P.C., 97 AD2d 19, 22 [1st Dept 1983].) Additionally, "[w]here the instrument requires something in addition to defendant's explicit promise to pay a sum of money, CPLR 3213 is unavailable." (Weissman, 88 NY2d at 444.) That is, the "instrument does not qualify if outside proof is needed, other than simple proof of nonpayment or a similar de minimis deviation from the face of the document," such as a readily ascertainable interest rate. (Id.)

Here, 1277 Realty proceeds on the guarantee executed by Kirschenbaum. To that extent, 1277 Realty is permissibly relying on a written instrument for the payment of money only, as CPLR 3213 requires. But only a portion of the total amount claimed by 1277 Realty can be established merely by reference to the guarantee and simple proof of nonpayment of rent by Shoe Box. 1277 Realty is entitled to summary judgment under CPLR 3213 as to that portion, but not the remainder.

Kirschenbaum does not dispute Shoe Box's nonpayment of rent for the period October 1, 2018, through February 1, 2019, or April 1, 2019, through July 22, 2019. He does not dispute the late fees owed under the lease for Shoe Box's failure to timely pay rent for those periods. And he does not dispute his responsibility under the guarantee for Shoe Box's monetary obligation for those periods. 1277 Realty is thus entitled to summary judgment for the sum total of that obligation. 1277 Realty's calculations, as set forth in an exhibit to its motion, indicate that this total is $164,999.29.^[FN1]

1277 Realty is not, however, entitled to summary judgment under CPLR 3213 for the balance of the sum that it claims on this motion—an additional $121,170.54. This balance has several components, discussed below.

First, 1277 Realty alleges that Shoe Box (and therefore Kirschenbaum) also owes rent for the month of March 2019. Kirschenbaum asserts in response that a check for that month's rent was paid to 1277 Realty and that the check cleared. 1277 Realty's filings in the Housing Court nonpayment proceeding appear to have taken the position that this check had instead gone (late) toward rent allegedly owed for September 2018, leaving March 2019 still outstanding. This dispute—in effect, whether Kirschenbaum also owes base rent and a late fee for September 2018 [*3]but nothing for March 2019, or also owes a late fee for September 2018 plus base rent and a late fee for March 2019—cannot be resolved merely by reference to the terms of the guarantee and simple proof of nonpayment, as required by CPLR 3213.

Second, 1277 Realty alleges that Kirschenbaum's obligation under the guarantee extends for the balance of Shoe Box's lease term—i.e., from July 23, 2019, through the month of October 2019. Kirschenbaum contends in response that Shoe Box properly surrendered the premises to 1277 Realty on July 22, 2019, and that under the guarantee's early-termination clause, this surrender cut off Kirschenbaum's obligations to 1277 Realty as of July 22. 1277 Realty hotly disputes whether Shoe Box's actions did, in fact, satisfy the conditions of the early-termination clause. This court expresses no opinion here on the merits of the dispute between the parties regarding the validity of Shoe Box's surrender of the premises—it is clear that such a dispute is not amenable to resolution on a CPLR 3213 summary-judgment motion.

Third, 1277 Realty alleges that Shoe Box (and therefore Kirschenbaum) is also responsible under the lease for the cost of repairs that 1277 Realty allegedly had to make to the premises (as set forth in bills attached to 1277 Realty's papers), and for legal fees involved in enforcing the terms of the lease and the guarantee. Kirschenbaum disputes that repairs were required, the need for repairs to the extent claimed by 1277 Realty, and the reasonableness of the legal fees claimed. Here, too, irrespective of the merits this court cannot resolve this dispute based merely upon the terms of Kirschenbaum's guarantee and upon outside proof that requires only a "de minimis deviation from the face of the document." Weissman, 88 NY2d at 444.

Accordingly, it is hereby

ORDERED that 1277 Realty's motion for summary judgment under CPLR 3213 is granted only to the extent that 1277 Realty is entitled to summary judgment in the amount of $164,999.29, and 1277 Realty is awarded judgment in that amount plus costs and disbursements as determined by the Clerk of Court upon submission of an appropriate bill of costs; and it is further

ORDERED that 1277 Realty's motion for summary judgment under CPLR 3213 as to the remaining amount claimed on the motion of $121,170.54, plus 1277 Realty's reasonable attorney fees incurred in enforcing Kirschenbaum's guarantee, is denied; and it is further

ORDERED that 1277 Realty's claim for $121,170.54 plus reasonable attorney fees is severed and shall continue in the form of a plenary action, and that 1277 Realty's motion papers shall be deemed a complaint (with supporting affidavits) and Kirschenbaum's opposition papers shall be deemed an answer, respectively; and it is further

ORDERED that as to this claim the parties shall confer and prepare a joint request for a preliminary conference with this court, as set forth in the Remote Conference Protocol available on this court's website, http://ww2.nycourts.gov/courts/1jd/supctmanh/index.shtml; and it is further

ORDERED that 1277 Realty shall serve a copy of this order with notice of its entry on all parties; on the office of the General Clerk, which shall amend its records accordingly; and on the office of the County Clerk, which shall enter judgment accordingly; and it is further

ORDERED that notice of entry may be served by mail or overnight delivery service, with 1277 Realty to e-file a copy of notice of entry (and accompanying affidavit(s) of service) on NYSCEF once filing of notices of entry in pending nonessential matters is again permitted by order of Chief Administrative Judge Lawrence Marks.