The following numbered papers were used on this motion: NYSCEF Document Numbers 1-22, 27-38.

Upon the foregoing papers, the Court having elected to determine the within motion(s) on submission pursuant to 22 NYCRR 202.8-f and IAS Part 2 Rules, Part II (Motions & Special Proceedings), Subpart C (Appearances & Post-Order Matters), Section 6 (Personal Appearances) ("All motions presumptively are to be argued in person unless the Court informs the parties at least two days in advance that it has made a sua sponte determination that a motion will be determined on submission."), and due deliberation having been had thereon,

It is hereby ORDERED as follows:

This action was commenced by a summons and an order show cause for summary judgment in lieu of complaint. Plaintiff sought the following relief in the order to show cause:

a. Directing Chesney, Nicholas & Brower, LLP, the Escrow Agent, to deliver the Downpayment to Plaintiff's counsel to be held in escrow until resolution of this motion, or in the alternative to deposit same in court,

b. Granting Plaintiff summary judgment and holding Defendants in Breach of Contract,

c. Directing that downpayment be delivered to Plaintiff as liquidated damages,

d. Directing the Defendants to immediately remove all plans filed against the Premises.

e. Along with such other, further and equitable relief this Honorable Court deems just and proper. (NYSCEF Doc No. 17 at 1-2)

The genesis of this action lies in a contract for the sale of real property, specifically the premises located at 181 North 8th Street, Brooklyn, New York. Defendant Chesney, Nicholas & Brower, LLP previously represented Plaintiff, as the seller of the property, a five family residential building, and is acting as the escrow agent holding the $352,600.00 downpayment toward the $3,526,000.00 purchase price.^[FN1] Defendant Karson Realty Acquisitions LLC was the purchaser.

Plaintiff claims that it is entitled to the turnover of the downpayment by the escrow agent as liquidated damages for breach of contract by the purchaser. Ostensibly, according to Plaintiff, the purchaser refused to close despite a time is of the essence closing being held, on the grounds that Plaintiff did not obtain a letter of no objection (LNO) from the New York City Department of Buildings. Plaintiff argues that the need for an LNO was rendered moot inasmuch as Plaintiff located the original Certificate of Occupancy for the property which confirmed its permissible use as a five-family dwelling. The Certificate of Occupancy was now on record with the Department of Buildings. When Plaintiff tendered the deed, the purchaser refused to accept it or to tender the remainder of the purchase price due. Other disputes between the parties in connection with Plaintiff meeting its duties also exist. (See generally NYSCEF Doc No. 4.)

CPLR 3213 provides in pertinent part: "When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint. . . . If the motion is denied, the moving and answering papers shall be deemed the complaint and answer, respectively, unless the court orders otherwise."

The Court denies the motion for summary judgment made via order to show cause. First, CPLR 3213 provides explicitly that a motion for summary judgment with supporting papers in lieu of a complaint be made by notice of motion. The Court agrees with other trial court decisions holding that moving by order to show cause is improper (see Omansky v Chase Manhattan Bank, 79 Misc 3d 1233[A], 2023 NY Slip Op 50774[U] [Sup Ct, NY County 2023]; Arena Bagels, Inc. v Brooklyn Bagels, Inc., 51 Misc 3d 1211[A], 2016 NY Slip Op 50607[U] [Sup Ct, Kings County 2016]; Rivers v Cambridge Mgt. Group LLC, 16 Misc 3d 1136[A], 2007 NY Slip Op 51713[U] {Sup Ct, Kings County 2007]; Bullard v Bullard Orchards, Inc., 153 Misc 2d 136 [Sup Ct, Saratoga County 1992]).

As stated in Omansky (2023 NY Slip Op 50774[U], *1 [emphasis in original]),

When an action is based upon an instrument for the payment of money only, "the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint"—not an order to show cause. (CPLR 3213 [emphasis added].) Nor is this difference merely one of form. A CPLR 3213 motion commences an action, albeit under an accelerated procedural framework. CPLR 3213 therefore requires a plaintiff to afford the defendant the same time to appear and respond that the defendant would have under CPLR 320 (a) in an action commenced by summons and complaint. That requirement would be made superfluous if a CPLR 3213 plaintiff could obtain an order to show cause setting a shorter, court-determined [*2]deadline for the defendant to appear and respond.

In discussing CPLR 3213, the Court of Appeals stated:

CPLR 3213 begins with the seemingly straightforward—though stringent—requirement that the action be based on "an instrument for the payment of money only or a judgment." [ ] The prototypical example of an instrument within the ambit of the statute is of course a negotiable instrument for the payment of money—an unconditional promise to pay a sum certain, signed by the maker and due on demand or at a definite time (see, 4 Weinstein-Korn-Miller, NY Civ Prac ¶ 3213.04, at 253). In fact, the remedy has proved an effective one, particularly for financial institutions recovering on promissory notes and unconditional guaranties (see, Cozier, Summary Judgment § 25.4, at 830, in 2 Commercial Litigation in New York State Courts [Haig ed]).

Ironically, however, the threshold requirement has also generated a spate of litigation, leading one commentator to note that there have been "so many invocations of CPLR 3213 over the years in which the result was a dismissal of the application for want of a proper 'instrument' ... [so as] to point up the illusory advantages of CPLR 3213 when used so carelessly" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3213:1, at 497).

This Court last spoke to the threshold requirement in Interman Indus. Prods. v R. S. M. Electron Power (37 NY2d 151, 154-155), observing that cases within CPLR 3213 "have dealt primarily with some variety of commercial paper in which the party to be charged has formally and explicitly acknowledged an indebtedness." Where the instrument requires something in addition to defendant's explicit promise to pay a sum of money, CPLR 3213 is unavailable. Put another way, a document comes within CPLR 3213 "if a prima facie case would be made out by the instrument and a failure to make the payments called for by its terms" (Interman, 37 NY2d at 155, citing Seaman-Andwall Corp. v Wright Mach. Corp., 31 AD2d 136, affd 29 NY2d 617). 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 (see, e.g., Bank Leumi Trust Co. v Rattet & Liebman, 182 AD2d 541 [readily accessible interest rate]). (Weissman v Sinorm Deli, Inc., 88 NY2d 437, 443-444 [1996].)

The instrument which Plaintiff relies on is the contract for the sale of the property. This is not an instrument for the payment of money only or a judgment. It is not commercial paper. The contract contains numerous provisions reciting the duties of both the seller and the purchaser. Contingent upon the purchaser's making payment is Plaintiff's (seller) compliance with its duties. Nothing in the contract explicitly obligated the escrow agent to pay the downpayment without qualification. Whether the escrow agent must pay over to Plaintiff the downpayment as liquidated damages is dependent upon the purchaser's beach of contract. The dispute between Plaintiff and Defendants involves more than payment of the purchase price, including the turnover of the downpayment held in escrow. At issue is whether the parties complied with duties and conditions, and whether Plaintiff performed. These are matters that can only be ascertained by resorting to evidence outside the instrument (contract) and are beyond the scope of a CPLR 3213 motion for summary judgment in lieu of complaint.

If outside proof is needed to determine liability under a contract, CPLR 3213 is unavailable for resolution of a dispute (see Kitchen Winners NY, Inc. v Triptow, 226 AD3d 989 [2d Dept 2024]; Express Valentine Auto Repair Shop, Inc. v New York Taxi 2, Inc., 185 AD3d [*3]550 [2d Dept 2020]).

Not only does Plaintiff seek in this motion that the escrow agent deliver the downpayment to him as liquidated damages, he also seeks a declaration holding the purchaser in breach of contract and a direction to the purchaser to remove all plans filed with the Department of Buildings. CPLR 3213's motion for summary judgment was not intended to provide this relief.

Where summary judgment in lieu of complaint is denied, a court is not obliged to treat the moving and answering papers as a complaint and answer, and has discretion to dismiss the action outright (see Schulz v Barrows, 94 NY2d 624 [2000]). Here, Plaintiff improperly utilized CPLR 3213 before the Court. "Useful as CPLR 3213 is, there may be pitfalls when it is invoked 'carelessly' (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3213:1, at 497) or 'too enthusiastically' (Siegel's Practice Review, No. 93, at 1 [Mar. 2000])" (Schulz, 94 NY2d at 629). The instant case is one of those instances. Accordingly, it is hereby ORDERED that Plaintiff's motion for summary judgment in lieu of complaint is DENIED and THE ACTION, IMPROPERLY COMMENCED, IS DISMISSED. The does not constitute an adjudication on the merits.