Opinion
Index No. 653850/2023 Motion Seq. No. 001
12-06-2023
ROMAIN STRECKER Plaintiff, v. SINGLEPOINT INC., Defendant.
Unpublished Opinion
MOTION DATE 08/09/2023
DECISION + ORDER ON MOTION
HON. JOEL M. COHEN JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 were read on this motion for SUMMARY JUDGMENT IN LIEU OF COMPLAINT
Plaintiff Romain Strecker's ("Plaintiff') motion for summary judgment in lieu of a complaint against Defendant Singlepoint Inc. ("Defendant") is granted.
BACKGROUND
The parties entered into a Promissory Note dated April 22, 2022 for $1,000,000 (the "Note" [NYSCEF 4]). The Note was entered in connection with a Securities Purchase Agreement pursuant to which Plaintiff sold his interests in non-party The Boston Solar Company, LLC, to Defendant ("SPA" [NYSCEF 15]).
The SPA is annexed to an affirmation of Defendant's counsel in opposition as opposed to an affidavit from a representative of Singlepoint. As the SPA is referenced in the Note advanced by Plaintiff and the SPA's authenticity has not been challenged in Plaintiff s reply, the Court has considered the SPA.
The Note provides for repayment in three installments. The first installment of $250,000 was paid upon execution of the SPA (Strecker Aff. ¶6 [NYSCEF 7]). The second installment of $250,000 was due on April 22, 2023, but was not paid (Strecker Aff. ¶9). Plaintiff served a notice to cure on Defendant dated May 3, 2023 ("Notice" [NYSCEF 5]). Plaintiff subsequently served a notice of default and acceleration dated May 19, 2023 ("Default" [NYSCEF 6]).
Plaintiff filed a summons and notice of motion for summary judgment in lieu of a complaint on August 9, 2023 (NYSCEF 1). The Note provides for interest to accrue at an annual rate of nine percent and permits the prevailing party to recover "reasonable attorney's fees." Accordingly, Plaintiff seeks a judgment of $750,000 plus interest along with costs and fees, including reasonable attorney's fees.
Defendant submits a combined affirmation of its counsel and memorandum of law in opposition (NYSCEF 13). Defendant contends that summary judgment is premature because Plaintiff made certain representations in the SPA and because the Note is a "subordinated and unsecured" promissory note. However, Defendant does not allege any breach of the SPA or identify any senior obligation that would preclude enforcement of the Note.
DISCUSSION
Pursuant to CPLR 3213, a party may commence an action by motion for summary judgment in lieu of complaint when the action is "based upon an instrument for the payment of money only or upon any judgment" (Oak Rock Fin.. LLC v Rodriguez, 148 A.D.3d 1036, 1039 [2d Dept 2017]). An "instrument for the payment of money only" is one that "requires the defendant to make a certain payment or payments and nothing else" (Seaman-Andwall Corp, v Wright Mach. Corp., 31 A.D.2d 136, 137 [1st Dept 1968]; Weissman v Sinorm Deli, Inc., 88 N.Y.2d 437, 444 [1996]). "It is well settled that a promissory note, as an instrument for the payment of money only, is entitled to the expedited procedure detailed in CPLR 3213" (R-H-D Const. Corp, v Miller, 222 A.D.2d 802, 803 [3d Dept 1995]).
Plaintiff has established a prima facie case through the submission of the Note, the Notice and the Default (Jinmei Yang v Shang Dai, 193 A.D.3d 475, 476 [1st Dept 2021] citing Zyskind v FaceCake Mktg. Tech., Inc., 101 A.D.3d 550, 551 [1st Dept 2012]). Defendant has failed to rebut Plaintiffs prima facie showing by establishing that a triable issue of fact exists (Simon v Indus. City Distillery, Inc., 159 A.D.3d 505, 505 [1st Dept 2018]).
Contrary to Defendant's contention, the fact that the Note was executed in connection with the SPA does not remove it from the ambit of CPLR 3213 (id. citing Atul Bhatara v Futterman, 122 A.D.3d 509, 510 [1st Dept 2014] [other citations omitted]). Further, "conclusory and unsubstantiated allegations" are insufficient to evade summary judgment (Bank Leumi Tr. Co. of New York v Rattet &Liebman, 182 A.D.2d 541, 542 [1st Dept 1992] [citations omitted]). Generalized assertions that Plaintiff made representations in the SPA and that the Note is "subordinated and unsecured" are insufficient to demonstrate that any material issue of fact is in dispute.
Finally, the Court shall determine the amount of costs and fees, including reasonable attorney's fees, owed (Simon, 159 A.D.3d at 506).
Accordingly, it is ORDERED that Plaintiffs motion for summary judgment in lieu of a complaint is GRANTED; it is further
ORDERED that Plaintiff settle a judgment within ten (10) days including an application for any costs and fees, including reasonable attorney's fees, incurred and that Defendant submit any proposed opposition and counter-judgement within five (5) days thereafter (the Court strongly encourages the parties to agree on a form of judgment without prejudice to either party's appellate rights).
This constitutes the decision and order of the Court.