Tradition North America, Inc. v. Sweeney

133 A.D.2d 53, 518 N.Y.S.2d 982, 1987 N.Y. App. Div. LEXIS 49585

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 27, 1987
• Status: Published

Opinions

Order of the Supreme Court, New York County (Harold Baer, Jr., J.), entered January 2, 1987, which denied plaintiff Tradition North America, Inc.’s motion for summary judgment, affirmed, without costs.

The facts are set forth in the dissenting opinion.

Each of the six notes upon which the present action is based by its terms holds open the possibility that defendant may repay the outstanding balance by earning bonuses. Indeed, defendant claims in his response to plaintiff’s CPLR 3213 motion for summary judgment in lieu of a complaint, that the last three notes and to some extent the first three notes, have been satisfied by bonuses earned. To determine the amount payable on the notes, it is thus necessary to look beyond the notes themselves, as the dissenter has in fact done, to the employment agreement in order to determine the circumstances under which defendant would become entitled to a bonus, and to look as well at plaintiff’s records respecting defendant’s performance to determine if in fact defendant earned bonuses and, if so, in what amounts.

That it is necessary to resort to extrinsic material to establish the amounts payable on the notes at issue is a reflection of the fact that they are not instruments for the payment of money only and are, therefore, inappropriate for accelerated judgment pursuant to CPLR 3213. Although, undeniably, these notes can be satisfied by monetary payment, they do not require payment by the defendant in monetary form. The defendant is given the option of performing work for his employer according to certain contractually established standards in order to satisfy the debt. Defendant, then, in executing these notes has not made an unconditional promise to pay a sum certain at a given time or over a stated period (see, Maglich v Saxe, Bacon & Bolan, 97 AD2d 19, 22). Rather, he has obligated himself to furnish consideration in the form of money and/or work for his employer. The notes may be viewed alternatively as evidencing a loan obligation or an advance on bonus and indeed, nonbonus, compensation.

When what purport to be notes have such a hybrid dimension they ought not to be considered instruments for the payment of money only (see, Paine Webber Jackson & Curtis v Aronson, 115 AD2d 355, 356). Indeed, they cannot be, because they do not, together with proof of failure to make payment according to their terms, constitute a prima facie case (see, Seaman-Andwall Corp. v Wright Mach. Corp., 31 AD2d 136, affd 29 NY2d 617; Interman Indus. Prods. v R. S. M. Elecron Power, 37 NY2d 151). By demonstrating a failure of monetary payment, one does not demonstrate that notes of the sort here involved, which do not call exclusively for monetary payment, have not been otherwise discharged. Concur—Murphy, P. J., Kassal and Smith, JJ.