Commercial real estate transactions, whether financed through traditional commercial lenders, or self-financed by the seller/lender, often involve the buyer’s/borrower’s execution of a promissory note. A promissory note, in its simplest terms, is a written statement evidencing that money is owed to the seller/lender (the Holder) by the author (the Maker) of the statement. The Holders often agree to make the promissory note because it facilitates the underlying transaction, may be transferred to other people who can then demand payment from the person or entity that originally owed money to them, and most significantly, because the Holder can, presumably, expeditiously enforce the promissory note in court without further evidence of the underlying reason why money was ever owed to the Holder. However, while the Holder may not have to concern itself with the debtor challenging the underlying transaction, courts are often left dealing with attempts to introduce parole evidence to show that the note was not a note at all.
The Motion for Summary of Judgment in Lieu of Complaint and Promissory Notes. To expeditiously enforce the note, the Holder often employs the motion for summary judgment in lieu of complaint, pursuant to CPLR §3213, which like the traditional motion for summary judgment statute (CPLR §3212), provides for an accelerated judgment. However, CPLR §3213 permits a summary judgment motion at the outset of the litigation, without pleadings, and there is no discovery.