Fiore Fin. Corp. v. Gaea N. Am., LLC

• Decision Date: 30 January 2020
• Docket Number: 10922A,10922,Index 650742/18
• Citation: Fiore Fin. Corp. v. Gaea N. Am., LLC, 179 A.D.3d 621, 114 N.Y.S.3d 878(Mem) (N.Y. App. Div. 2020)
• Parties: FIORE FINANCIAL CORPORATION, Plaintiff–Respondent, v. GAEA NORTH AMERICA, LLC, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

179 A.D.3d 621

114 N.Y.S.3d 878 (Mem)

FIORE FINANCIAL CORPORATION, Plaintiff–Respondent,

v.GAEA NORTH AMERICA, LLC, Defendant–Appellant.

10922

10922A

Index 650742/18

Supreme Court, Appellate Division, First Department, New York.

ENTERED: JANUARY 30, 2020

Rotbert Business Law, P.C., New York (Mitchell J. Rotbert of counsel), for appellant.

Greenberg Traurig, LLP, New York (William Wargo of counsel), for respondent.

Richter, J.P., Gische, Mazzarelli, Gesmer, JJ.

Judgment, Supreme Court, New York County (O. Peter Sherwood, J.), entered March 12 2019, granting plaintiff's motion for summary judgment in lieu of complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about January 3, 2019, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff properly showed that the promissory note at issue contained an unconditional promise to pay, that defendant executed the note, and that defendant failed to pay in accordance with the note's terms. The motion court properly rejected defendant's claim that the note falls outside the scope of CPLR 3213 because it refers to a "contemplated management agreement" which the parties never ultimately entered.

"A document does not qualify for CPLR 3213 treatment if the court must consult other materials besides the bare document and proof of nonpayment, or if it must make a more than de minimis deviation from the face of the document" ( PDL Pharmaceuticals, Inc., v. Wohlstadter , 147 A.D.3d 494, 495, 47 N.Y.S.3d 25 [1st Dept. 2017] ; see Weissman v. Sinorm Deli , 88 N.Y.2d 437, 444, 646 N.Y.S.2d 308, 669 N.E.2d 242 [1996] ). Here, where the parties agreed that they had not entered into the "contemplated management agreement" by October 31, 2016, that is the type of "de minimis" information which does not preclude relief under CPLR 3213.

The motion court properly rejected defendant's argument that plaint...