Clusener v. Creative No. 3, LLC

2025 NY Slip Op 31662(U)

• Court: New York Supreme Court, Nassau County
• Decided: May 7, 2025
• Docket: Index No. 620611/2024
• Status: Unpublished

Opinion

Clusener v Creative No. 3, LLC 2025 NY Slip Op 31662(U) May 7, 2025 Supreme Court, Nassau County Docket Number: Index No. 620611/2024 Judge: Sharon M.J. Gianelli Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 620611/2024 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 05/08/2025

SUPREME CO RT OF 'HIE STA'J E OF NEW YORK COU TY OF NASSAU - Commerci al Division Part 7 Present: Hon. Sharoa M,J. Gian.ell~ X BRIGITIACL.U ENRR, ]ndex No.: 62061 t/2,0 24 Plaintiff, Motion Seq. 001 -against- Decismon and Order

CREATlVE UMBER 3, LLC, a Ne,,.. Yoll'k limited liability compan_ and GARY GREY,

D fendants. " Papers Submitted: Notice of Motion, Affirmation, Affida"it and E:osirion_ __ _ __ _ _____,X=,

Plaintiff~ Brigitt.1 Clusner, C'Plaiintiff1 mm·es for an Order pursuant to Cl'LR 3213, granting IPlainti ff judgment in lhe amount of $760,9994 2. as a result of a hrcach of the

term. of a Promissor y ote executed by Defendan ts Creative Number 3. LLC ("Cr ative

LLC't) and Gary Grey(' Grey") (collecti\'ely "'Defendants'1. Defendan ts oppose the

motion.

On October 19, 202oj Plaintiff and Defendan t Creative LLC entered into a purchase

money mortgage ag,r ement. Subsequ ntly, Defendan t Creative Lt..C duly executed a Promissor y Note in tho amount of 5750,000 .00, payab] to Plaintiff. Defendan t Grey

executed a guaranty dated October l9t 2020, obligating D i nda.nts1 jointb· and

severally to remain responsibl e for aH payments due to Plaintiff under th terms of the

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Promissory Note, 'inc1uding but not limited to. the repayment of the $750,000.00

principa] loaned by Pfainti ff.

Pursuant to the Promissory Note, Defondan:t:s were obligated to pay on a schedule of the

First of each month until October 11 2027. Plaintiff ml g,c s that Defendants made

sporadic pa_ ments and did not fol low the payment schedule as set forth in the

Prornissmy Note. Plaintiff served payoff default sraJtemen.ts to Defendants dated March

15, 2023, October 26, 2023 and February 16, 2024 by certified man.

Plainti.ff now socks to recover $680,140.23 in unpaid principal t the interest due thereon in the amount or $35,544_41,. monthly late foes in 'the amount of $3,124.20, unpaid real

estate taxts paid by the lender in th amount of $33~709.82, p1us legal fees in the

ammmt of 88,480.76 totaling 760,999,42, plus pre-judgment inter ton aU amounts

a,,-ams and oosts and disbtu·semcnts in this ac.tion including reasonable attorney's fees.

L--aw/ Analysis

CP LR 3213 provides that a plaintiff may serve a summons and notice of rnotio.n for

snmrnavy judgn1e11t ,\ith supporting papers i:n lieu of a complaint where the und r1)ing

action is based upon an itlstrument for the payn1cnt of mone~ only or upon any judgmen't . 'An instrument for the pa)rment of:m.one)· only is one th..1.t contains an

unconditional promiS-e to•pa)' a sum oertain, signed b;• the maker and due on or at a

definrte time" (Oak Rock Fiti-. LLC v. Rodnguez, J48 AD3d 1036, 1039 [ 2d Dpt. 2017]

quot.mg WeissnJ·,an. u. Sirr.op+1tJ Dela"; 99 NY2d 437. 444 [1996]). The instrument do !,; not

qualify if outside proof is needed. other thari :s.impl proof of nonpay:m cnt or a similar de

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minimis deviation from the face of the document (see id. at 444; see cdso Be<•,t &mk v.

Melville Magnetic Resonance Inmying, 270 A.D.2d 440,441 (2d Dept 2000).

"Once the p1aintiff submits evidence establishing these elerrmeots~ tha bunlcn then shifts to the defendants to submit evidcn~ establishing the existence of ai triable issu.e '11\'mth

respect to a bona fide defens ••(Am.Realty Corp. ofNY u. Sukhu, 90 AD3d 7g,2).

Defendants argue that D Cendant Grey bas not defaulted under the terms of tl1e guaranty. Defendants aJl,'Ues that according to the terms of the guarani.)' e.Klecuted b)t Defendant Grey, VJ a intiff can on l!Y pursue Defendant Grey if a deficiency judgment

obtained after a foreclosure sale, is entered a_gainst Defendant Creative LLC. Dclendants

assert that Plaintiff has not commenced a foreclosure action. Defendants furth r argue

tha:t the n1aturit:y date unde:r the P:romissory Note is October 1. :2.027 and therefore,

Plaintiff does not ha.Ye the tig,ht to bring this proceeding. LasUy, Defendants assert that

·th Promissory Note makes refe11ence to the mortgage dated October 1, ~020 and this

reference r-emoves tlile Pr-omisso:ry Note from qunlirfication under CPLR 3213.

Here, Lh Court finds that Ptaintiff established 'its ]Jtima fade entitlement to summary

judgment \\fith respc~t Defendant Creative 1J..C only. Defendants failed to raise a triable

issue of fact ,,7ith respet.1: to the Promissory Note. However. the guairanty execuled by

Defendant Grey does not qualify for accdcrnted judgment under CPLR 3213 as it

requires outside proof (see Beal Bank, 270 A.D.ad 440,441 [2d Dept 200r)]).

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Accordingly;

It is

ORDERED, that Plaintiffs motion fot· an Order granting Summary Judimcnt in Ueu of

Complaint in favor of PJaintUf, i Granted as against Defendant Cteatiive Number 3, LLC, only; BDd

n is ORUERF.D, that an [nquest shall be held to assess damages due to PlaintUf; 8Jld

ORDERED~ that Plaintiff serve a Note of Issue, to~ether \\1th a copy of this Order- upon

Defendant, Creative Number 3, Ll£, by certified man! return receipt requested, and

snaU serve copies of same together with r~ooipt of pa)'nWDt, upon the Calendar Clerk of this Court ,..i thln {l,venty (20) days of the date ofthts Decision ~nd Order; and

[tis

ORDERED. that u1m-n proof of the ote of lssue filing, an lnquest to assess Plaintiffs

damases shall be heid [n-Person ou ,June 16, 2025, at n:30 a. m. at Nassau. County

Su.prcme Court too Supr,eme Court Drive, Mineola. NY 11501; and

lt is

ORDHRED, that Plaintiffs motion fol' am Order granting Sm:nman,r Judgment in Lieu of

Compla1nt in favor of Plaimtiff as againsSt Defendant Gary Grey, is D'C!nied.

a

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All applications not specificaUy addressed herein ue dleoied.

This conshtutes the Decision and Order of the Court.

Dated: Mineola, ew Yotk May 7; 2025,

S,

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