Northfield Bank v Upkeep Mgt. Inc.

Supreme Court, Richmond County

Decided on April 17, 2026

Index No. 150099/2026

Ronald Castorina, Jr., J.

I. Statement Pursuant to CPLR § 2219 [a]

The following e-filed documents listed on NYSCEF (Motion #001) numbered 1-10 were read on this motion. The following papers were considered on this motion for summary judgment in lieu of complaint: Notice of Motion dated January 15, 2026; Affirmation of Allyn J. Crawford, Esq., dated January 15, 2026, with exhibits annexed; Affidavit of Douglas Cummings, sworn to on January 15, 2026, with exhibits annexed; Affidavit in Opposition of Zev Herskovits dated February 16, 2026; Affirmation in Reply of John W. Pilkington, Esq., dated April 14, 2026.

Plaintiff, Northfield Bank, moves pursuant to CPLR § 3213 for summary judgment in lieu of complaint against defendants Upkeep Management Inc. and Zev Herskovits, seeking enforcement of a Commercial Line of Credit Agreement and Note dated December 16, 2021 (NY St Cts Filing [NYSCEF] Doc No. 4 at Exhibit A), a Continuing Guaranty executed by Mr. Herskovits on the same date (see id at Exhibit B), and a Term Out Agreement dated March 7, 2023 (see id at Exhibit C). Defendants oppose the motion. Upon due consideration of the submitted papers and proceedings, and for the reasons set forth below, the motion is GRANTED.

II. Facts

Plaintiff is a federally chartered bank. (NY St Cts Filing [NYSCEF] Doc No. 4 at ¶1-2). On or about December 16, 2021, it extended a commercial line of credit to defendant Upkeep Management Inc., in the principal amount of $100,000.00, as evidenced by a written instrument styled "Commercial Line of Credit Agreement and Note" (the "Note"). (see id at Exhibit A). The Note was executed by Upkeep Management Inc. through its principal, defendant Zev Herskovits.

The Note provided for on-demand repayment of all sums advanced thereunder, with monthly payments due beginning February 1, 2022, calculated as 8.33% of the outstanding balance plus accrued interest. (see id). The Note also expressly granted Plaintiff the unilateral right to accelerate the obligation upon default or demand. (see id). Interest was to accrue at a variable rate with a floor of 6.250% and a ceiling of 16.00%.

Concurrently, Zev Herskovits executed an Unlimited Continuing Guaranty, unconditionally guaranteeing "any and all indebtedness" of Upkeep Management Inc. to Northfield Bank, including future extensions, renewals, and modifications. (see id at Exhibit B). The Guaranty is absolute and continuing, and it waives all defenses available at law or equity. (see id).

On March 7, 2023, following Upkeep Management Inc.'s failure to renew the line of credit, the parties entered into a Term Out Agreement confirming an outstanding balance of $98,994.54. (see id at Exhibit C). Under the new terms, the obligation was restructured into a 60-month installment loan bearing interest at 10.75%, with monthly payments of $2,144.75. (see id). No novation was alleged or demonstrated; the Term Out Agreement reaffirmed the existing debt under the Note.

Upkeep Management Inc. defaulted under the Term Out Agreement by failing to make the payment due December 1, 2025, and all subsequent monthly payments. (see id at Exhibit D). Plaintiff declared the entire principal sum of $53,067.03 due and payable, and further seeks interest from December 1, 2024, late charges, costs, and attorneys' fees as contractually permitted.

II. Conclusions of Law

A. Applicability of CPLR § 3213

CPLR § 3213 permits a plaintiff to move for summary judgment in lieu of complaint where the action is "based upon an instrument for the payment of money only." To qualify, the instrument must contain an unconditional promise to pay a sum certain, signed by the maker, and [*2]due either on demand or at a definite time. Outside evidence should not be required beyond the instrument itself and simple proof of non-payment.

Here, the Note satisfies the statutory definition. It is a signed, unconditional promise to repay sums advanced, on demand or upon default, with interest. The fact that the Note was structured as a revolving line of credit does not negate its enforceability under CPLR § 3213 once the obligation becomes fixed and due. Upon default and demand, the amount due becomes a determinable sum, which Plaintiff has demonstrated through admissible business records.

The Guaranty likewise qualifies as an instrument for the payment of money only. Its language is unequivocally absolute and unconditional, and its scope includes present and future liabilities. A personal guaranty may serve as a basis for CPLR § 3213 relief where, as here, it obligates the guarantor to pay a sum certain upon default of the primary obligor.

The Term Out Agreement, while evidencing a restructuring of the debt, does not alter the essential character of the underlying obligation. It further solidifies the fixed indebtedness and renders the total due ascertainable. No ambiguity or factual issue arises as to the amount or due date.

B. Defendants' Opposition

In opposition, Mr. Herskovits avers acknowledges the execution of the promissory note, he contends that summary judgment is inappropriate because Plaintiff's claim purportedly requires "strict proof of the underlying payment history and the basis for each component of the amount claimed due" to determine the balance due. (NY St Cts Filing [NYSCEF] Doc No. 8). He further specifically disputes the exact principal balance claimed and pleads severe financial hardship due to the business no longer operating and has not generated revenue for several months. (see id).

These arguments are wholly unavailing.

First, once the line of credit was terminated and the amount owed was fixed by the Term Out Agreement, the amount became readily ascertainable from the face of the documents and Plaintiff's affidavit. Defendants' reliance on the instrument's former variable structure is immaterial; what matters under CPLR § 3213 is that the obligation is now due, definite, and payable based solely upon the written instruments and evidence of non-payment.

C. Attorneys' Fees and Costs

Plaintiff seeks $2,000.00 in attorneys' fees and $650.00 in disbursements. The Note and Guaranty both authorize recovery of reasonable legal expenses in the event of default. Counsel's affirmation details the hours expended and the applicable hourly rate, which the Court finds fair and reasonable.

III. Conclusion and Decretal Paragraphs

Plaintiff has established a prima facie case under CPLR § 3213 by submitting the Note, Guaranty, Term Out Agreement, and proof of default. Defendants have failed to raise a triable issue of fact or demonstrate a bona fide defense.

Accordingly, it is:

ORDERED that Plaintiff's motion for summary judgment in lieu of complaint is GRANTED in its entirety; and it is further

ORDERED that the Clerk is directed to enter judgment in favor of Plaintiff, Northfield Bank, and against defendants Upkeep Management Inc. and Zev Herskovits, jointly and severally, in the principal amount of $53,067.03, together with interest thereon at the contract rate of 10.27% per annum from December 1, 2025 through the date of entry of judgment, plus late charges in the amount of $107.23, attorneys' fees in the amount of $2,000.00, and costs in the amount of $650.00; and it is further

ORDERED that statutory interest shall accrue on the total judgment amount from the date of entry.

Dated: April 17, 2026

Staten Island, New York

E N T E R,

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT