This is a CPLR 3213 motion for summary judgment in lieu of complaint, brought by plaintiff, Gallery Apartments Co., LP, against defendant, the Board of Managers of the Petit Verdot Condominium. Plaintiff is seeking to collect on a promissory note executed by defendant in favor of plaintiff's predecessor in interest in May 2014, and effective on July 1, 2014. Plaintiff claims that defendant was required to, but did not, make an $862,282 balloon payment upon the note's maturity date in June 2024. Plaintiff seeks on this motion the amount of the balloon payment, plus interest. The motion is denied.

Promissory notes qualify for CPLR 3213 treatment. (See Aranoff v Lipskar, 269 AD2d 124, 124-125 [1st Dept 2000].) To establish a prima facie case for CPLR 3213 relief on a note, plaintiff must provide the note and evidence of defendant's failure to make payments on the note. (See Finch Prop. Holdings I, LLP v Blumenfeld, 234 AD3d 521, 523 [1st Dept 2025].) Here, plaintiff provides the note and the agreement assigning the note to it. But plaintiff has not established that defendant failed to make payments on the note.

To support its claim for payment, plaintiff relies only on the affidavit of James Hefelfinger, the principal of one of plaintiff's partners. Hefelfinger represents in his affidavit that defendant "made the monthly interest payments due through May 1, 2024, but has failed to make [*2]any principal payments, including the balloon principal payment" of $862,282, which "was due on June 1, 2024." (NYSCEF No. 3 at ¶ 9.) Plaintiff does not submit a ledger or other documentation of defendant's payments (or the failure to make payments). And Hefelfinger's representation here that defendant did not make any payments of principal on the note is squarely contradicted by representations that Hefelfinger made in a prior CPLR 3213 motion-action on this note.

In 2018, plaintiff brought a claim under CPLR 3213 against defendant for unpaid principal and interest then owed under the note. (See Gallery Apartments Co., LP v Board of Managers of the Petit Verdot Condominium, Index No. 154981/2018 [Sup Ct, NY County].) Plaintiff based its entitlement to relief on an affidavit provided by Hefelfinger. In that affidavit, Hefelfinger represented that (i) defendant "made the monthly payments due through July 31, 2017," but (ii) had not made the required monthly payments "due from August 2017, through May 2018." (Index No. 154981/2018, NYSCEF No. 5 at ¶ 6.) Defendant was therefore liable, Hefelfinger said, for those payments plus late fees, totaling $58,228.31. (Id.) This court (Bluth, J.) granted plaintiff's CPLR 3213 motion and awarded the amount claimed, plus prejudgment interest. (See Index No. 154981/2018, NYSCEF No. 43.) Defendant then satisfied the judgment by paying plaintiff $61,619.75. (See Index No. 154981/2018, NYSCEF No. 48.)

In other words, plaintiff's affiant's representations in the prior action, and the satisfaction of judgment that plaintiff filed in that action, reflect that defendant made at least four years' worth of payments on the note that included both principal and interest (i.e., for July 2014 through May 2018). Yet the same affiant now represents that defendant made no payments that included principal at all. Both representations cannot be correct. But plaintiff offers this court no way to choose between them—nor a basis to determine how much weight, if any, should be afforded to the later Hefelfinger affidavit, given its discrepancies with the earlier one.^[FN1]

Absent reliance on the Hefelfinger affidavit submitted on this motion, plaintiff has not made out its prima facie case for summary judgment in lieu of complaint. Plaintiff's summary-judgment motion is therefore denied without considering the arguments offered by defendant in opposition.^[FN2]

Accordingly, it is

ORDERED that plaintiff's CPLR 3213 motion is denied; and it is further

ORDERED that this motion-action is converted into a plenary action, with plaintiff's motion papers deemed a complaint with supporting exhibits, and defendant's opposition papers deemed an answer with supporting exhibits; and it is further

ORDERED that the parties are directed to appear before this court for a telephonic preliminary conference on June 30, 2025.