The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 were read on this motion for SUMMARY JUDGMENT IN LIEU OF COMPLAINT. DECISION + ORDER ON MOTION Barry Industrial LLC (“Plaintiff”) seeks an award of summary judgment in lieu of complaint under CPLR §3213, against Defendants Barry Street Holdings LLC and Stephen Werdiger (collectively, “Defendants”), in the amount of $3,599,572.89, plus default interest at the rate of 9.48 percent from May 1, 2023 through and after the entry of the Judgment, a late fee of 6 percent on the unpaid principal amount, and reasonable attorney’s fees and costs and disbursements, based on promissory note executed by Barry Street Holdings and secured by a guaranty executed by Stephen Werdiger. Defendants oppose and cross-move pursuant to CPLR 3211(a)(3), to dismiss the action because Plaintiff lacks standing to foreclose. For the reasons set forth below, and in consideration of the arguments made at oral argument on March 25, 2024, Plaintiff’s motion is granted and Defendants’ cross-motion is denied. Pursuant to CPLR 3213, a plaintiff makes out a prima facie case for summary judgment in lieu of a complaint by submitting proof of an instrument “for the payment of money only or upon any judgment,” and the defendants’ failure to make payment according to its terms (see Seaman-Andwall Corp. v. Wright Mach. Corp., 31 AD2d 136, 137 [1st Dept 1968]; Oak Rock Fin., LLC v. Rodriguez, 148 AD3d 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., 31 AD2d at 137; Weissman v. Sinorm Deli, Inc., 88 NY2d 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 AD2d 802, 803 [3d Dept 1995]). Likewise, a “guarantee qualifies as an ‘instrument for the payment of money only’ under CPLR 3213″ (Torres & Leonard, P.C. v. Select Professional Realties, Ltd., 118 AD2d 467, 468 [1st Dept 1986]; State Bank of India, New York Branch v. Patel, 167 AD2d 242, 243 [1st Dept 1990]). “Once the plaintiff submits evidence establishing its prima facie case, the burden then shifts to the defendant to submit evidence establishing the existence of a triable issue of fact with respect to a bona fide defense.” (Griffon V. LLC v. 11 East 36th, LLC, 90 AD3d 705, 707 [2d Dept 2011]). Here, Plaintiff has established a prima facie case for summary judgment pursuant to 3213 by demonstrating that (i) the Defendant Barry Street Holdings executed the Promissory Note and Defendant Stephen Werdiger executed the Guaranty, both in favor of Sterling National Bank (the “Original Lender”) (NYSCEF 6 [the "Promissory Note"]; NYSCEF 7 [the "Guaranty"], (ii) the Promissory Note (as modified by the Fifth Allonge) contains unconditional promises to repay the Original Lender on or before May 1, 2023, and the Guaranty irrevocably and unconditionally guaranteed the punctual payment and performance of the Promissory Note; (iii) the Promissory Note and Guaranty was duly endorsed the in favor of Plaintiff by Webster Bank, successor by merger to Original Lender (Promissory Note at 25); and (iv) Defendants failed to repay the full amounts due under the Loan in accordance with the terms of the Promissory Note as amended (see NYSCEF 3 ["Hooker Aff"]
27-29; NYSCEF 4 ["Burke Aff"]). In opposition, Defendants fail to establish by admissible evidence the existence of a triable issue of fact to avoid enforcement of the Promissory Note and Guaranty. Defendants admit the existence and validity of the Note, Guaranty and Mortgage and that the Loan’s stated maturity date as amended was May 1, 2023 (see NYSCEF 17 ["Tress Aff"] at
