This is a motion-action on a promissory note and guarantee, brought by plaintiff, Stanley Gurewitsch, against defendant-borrower Mark S. Fawer and defendant-guarantor Martin Fawer. On motion sequence 001 in this action, this court granted plaintiff's CPLR 3213 motion against Mark Fawer and denied the motion as against Martin Fawer, because Martin Fawer had died in June 2023 while the motion was pending.^[FN1] (See Gurewitsch v Fawer, 2023 NY Slip Op 50639[U], at *2—3 [Sup Ct, NY County 2023].) Plaintiff later sought to substitute the guarantor's [*2]estate and to appoint Estanne Fawer as personal representative. The court denied that request without prejudice on the ground that the application to appoint Estanne Fawer as personal representative should be made first to Surrogate's Court. (See NYSCEF No. 38.)

In July 2024, this court substituted defendant Estanne Fawer as personal representative of the Estate of Martin Fawer, following her appointment as personal representative by Surrogate's Court. (See NYSCEF No. 46.) Plaintiff now moves to renew the prior motion under CPLR 2221 (e); on renewal, plaintiff seeks summary judgment in lieu of complaint against Estanne Fawer in her representative capacity. The motion is granted.

A motion for renewal may be granted upon a showing of new facts not available at the time of the prior motion and that would change the prior determination. (Matter of Beiny v Wynyard, 132 AD2d 190, 210 [1st Dept 1987].) Here, the Surrogate Court's appointment of Estanne Fawer as Martin Fawer's personal representative constitutes a new fact that did not exist when this court previously denied substitution. Because this new fact removes the procedural impediment that precluded determination of the CPLR 3213 motion on the merits, renewal is appropriate. The request for leave to renew is granted.

Under CPLR 3213, a plaintiff may move for summary judgment in lieu of complaint when the action is based upon an instrument for the payment of money only. The purpose of this rule is "to provide a speedy and effective means of securing a judgment on claims presumptively meritorious." (Weissman v Sinorm Deli, Inc., 88 NY2d 437, 443 [1996].) To prevail, plaintiff must demonstrate (1) the existence of such an instrument and (2) defendant's failure to pay in accordance with its terms. Once plaintiff meets this prima facie burden, the burden shifts to defendant to demonstrate the existence of a triable issue of fact. (Banco Popular N. Am. v Victory Taxi Mgmt., 1 NY3d 381, 383—384 [2004].).

It is undisputed that plaintiff has met his prima facie burden. In opposition, Estanne Fawer raises two defenses: incapacity and unconscionability. The court addresses these defenses in turn.

1. Estanne Fawer contends that the guarantee Martin Fawer executed is unenforceable because he lacked capacity at the time of signing. The burden of establishing incapacity lies with the party asserting it. (Sears v First Pioneer Farm Credit, ACA, 46 AD3d 1282, 1284 [3d Dept 2007].) A party is incapable of contracting only if the party is "wholly and absolutely incompetent to comprehend and understand the nature of the transaction." (Lansco Corp. v NY Brauser Realty Corp., 63 AD3d 513, 514-15 [1st Dept 2009].)

In attempting to meet this burden, Estanne Fawer relies on a heavily redacted affirmation from a psychiatrist. (See NYSCEF No. 60.) The affirmation does not specify that Martin Fawer [*3]was incapacitated on October 27, 2020, the date the guarantee was executed. Even if such a conclusion were implied, it lacks supporting detail. Conclusory or unsubstantiated medical opinions are insufficient to establish incapacity. (See Sears, 46 AD3d at 1285.) Moreover, Martin Fawer's April 5, 2021, email correspondence with plaintiff reflects a clear understanding of the nature of the loan, undermining claims of incapacity. (See NYSCEF No. 65 at 2-3.) Estanne Fawer has not raised a triable issue of fact about whether Martin Fawer lacked capacity with respect to the guarantee.

2. Estanne Fawer also argues that the guarantee is procedurally and substantively unconscionable, citing Martin Fawer's weakened mental condition, familial pressure, and the guaranty's unconditional terms. These arguments are unavailing.

Procedural unconscionability concerns whether one party used high-pressure tactics or deceptive language and whether there was a meaningful inequality of bargaining power. (Sablosky v Edward S. Gordon Co., 73 NY2d 133, 139 [1989].) Substantive unconscionability focuses on whether the terms are unreasonably favorable to one party. (Id.)

Here, the record shows that Martin Fawer initiated the loan transaction. No record evidence indicates that plaintiff used deceptive or coercive tactics. The parties' long-standing personal relationship, absence of counsel on both sides, and lack of evidence of incapacity at the time of signing negate any imbalance in bargaining power. Although the guarantee's unconditional nature favors plaintiff, those provisions are standard in commercial practice and are routinely upheld by New York courts. (E.g. Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A. v Navarro, 25 NY3d 485, 493 [2015].) Defendant's unconscionability defense fails as a matter of law.

Finally, plaintiff seeks attorney fees, as provided for by the guarantee (see NYSCEF No. 6 at 3 ¶ A [5]). Plaintiff's request for fees is granted; the amount of those fees shall be determined by motion made on notice.

Accordingly, it is

ORDERED that the branch of plaintiff's motion seeking leave to renew is granted; and it is further

ORDERED that on renewal, the branch of plaintiff's motion seeking summary judgment in lieu of complaint against Estanne Fawer (in her representative capacity as personal representative of the Estate of Martin Fawer) is granted, and plaintiff is awarded a judgment against Estanne Fawer in her representative capacity for (i) the outstanding principal balance of $173,500, with interest running at the contractual default rate of 18% from October 25, 2022; plus (ii) already accrued interest of $56,769.53; plus (iii) costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that plaintiff may obtain entry of a supplemental judgment against Estanne Fawer for his reasonable attorney fees, with the amount of those fees to be determined by motion [*4]made on notice, supported by appropriate documentation; and it is further

ORDERED that plaintiff serve a copy of this order with notice of its entry on defendants; and on the office of the County Clerk (using the NYSCEF document type "Notice to the County Clerk - CPLR § 8019 (c)"), which shall enter judgment accordingly.