JFURTI, LLC v First Capital Real Estate Advisors, L.P., 2018 NY Slip Op 06493 [1st Dept. 2018]
On the issue of the applicability of CPLR 3213, the documents herein are not “instruments for the payment of money only,” as contemplated by the statute, because they contain obligations beyond just the payment of money and require that payment be made in the future for an unidentified amount (see Weissman v Sinorm Deli, 88 NY2d 437, 444 [1996]). Moreover, the guaranty does not qualify because it is a guaranty for both payments and performance (Dresdner Bank AG. [N.Y. Branch] v Morse/Diesel, Inc., 115 AD2d 64, 68 [1st Dept 1986]). However, when a “plaintiff has mistaken his remedy and CPLR 3213 is in fact not available, the action typically should not be dismissed but simply converted to ordinary form as the statute provides,” unless the court orders otherwise (Weissman, 88 NY2d at 445; CPLR 3213). If the claims can be decided on the merits, the court can grant summary judgment accordingly (id. at 445).
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