Motion for Summary Judgment in Dena K. Weiner v. Randy Abend, Ruth Abend| Trellis.Law

On April 20, 2023 a Motion-Secondary was filed involving a dispute between Dena K. Weiner, and Randy Abend, Ruth Abend, for Commercial - Contract in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

DENA K. WEINER, Index No. 651955/2023
Plaintiff,

-against- Mot. Seq. 1

RANDY ABEND and RUTH ABEND,

Defendants.

PLAINTIFF’S REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF
HER MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT AND IN
OPPOSITION TO DEFENDANT RANDY ABEND’S CROSS-MOTION FOR A STAY

Scott Mollen, Esq.
Samuel J. Bazian, Esq.
HERRICK, FEINSTEIN LLP
2 Park Avenue
New York, New York 10016
Attorneys for Plaintiff

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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ........................................................................................................ ii

PRELIMINARY STATEMENT .................................................................................................. 1

ARGUMENT ............................................................................................................................... 2

POINT I PLAINTIFF HAS ESTABLISHED HER RIGHT TO
SUMMARY JUDGMENT IN LIEU OF COMPLAINT ..................................... 2

POINT II RANDY’S DEFENSES ARE MERITLESS AND SHOULD
BE REJECTED ..................................................................................................... 3

A. Randy’s Claim that the Loan was Actually a Gift Fails to Create
an Issue of Fact ..................................................................................................... 4

i. Randy’s Self-Serving, Unsubstantiated Affidavit is Barred By
the Parol Evidence Rule, and Nevertheless Fails to Create an
Issue of Fact .............................................................................................. 4

ii. Randy’s Unsupported Assertion that Mr. Rozenholc Induced
Him to Sign the Note is Legally Irrelevant, as He Was Not a
Party to the Note ....................................................................................... 8

B. Defendants Liability Under the Note is Clear; The “Security Instrument”
Referenced Therein Has No Bearing on Plaintiff’s Unambiguous Right to
Repayment ............................................................................................................ 9

POINT III THERE IS NO BASIS TO STAY THIS PROCEEDING .................................. 11

CONCLUSION ........................................................................................................................... 12

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TABLE OF AUTHORITIES
Page

Federal Cases
J.B. Sterling Co. v. Verhelle,
397 F. Supp. 3d 286 (W.D.N.Y. 2019) ......................................................................................9

State Cases
In re Adoption of Martz,
102 Misc. 2d 102 (Fam. Ct. 1979), aff’d sub. nom., 77 A.D.2d 281 (3d Dep’t 1980),
aff’d, 54 N.Y.2d 417 (1981), aff’d judgment sub. nom., 463 U.S. 248 (1983) ..........................9

Alard, L.L.C. v. Weiss,
1 A.D.3d 131 (1st Dep’t 2003) ..................................................................................................3

Bd. of Managers of the Cobblestone Lofts Condo. v. McMahon,
No. 150076/2020, 2022 WL 2188567 (Sup. Ct. N.Y. Cty. June 10, 2022) .............................11

Craven v. Rigas,
71 A.D.3d 1220 (3d Dep’t 2010) .............................................................................................10

Dayan v. Yurkowski,
238 A.D.2d 541 (2d Dep’t 1997) ...............................................................................................6

Embraer Fin. Ltd. v. Servicios Aereos Profesionales, SA,
42 A.D.3d 380 (1st Dep’t 2007) ..............................................................................................10

Eur. Am. Bank v. Cohen,
183 A.D.2d 453 (1st Dep’t 1992) ..............................................................................................4

Ferber v. Fairfield Greenwich Grp.,
28 Misc. 3d 1214(A), 2010 WL 2927274 (Sup. Ct. N.Y. Cty. 2010)......................................12

Friends Lumber Inc. v. Cornell Dev. Corp.,
243 A.D.2d 886 (3d Dep’t 1997) ...............................................................................................5

Genger v. Genger,
123 A.D.3d 445 (1st Dep’t 2014) ..............................................................................................7

Greenleaf v. Lachman,
216 A.D.2d 65 (1st Dep’t 1995) ............................................................................................6, 7

Gross v. Fruchter,
230 A.D.2d 710 (2d Dep’t 1996) ...............................................................................................5

Lexon Ins. Co. v. Sanare Energy Partners, LLC,
No. 654170/2020, 2021 WL 722847 (N.Y. Sup. Ct. Feb. 24, 2021) .........................................5

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Mt. McKinley Ins. Co. v. Corning Inc.,
33 A.D.3d 51 (1st Dep’t 2006) ................................................................................................12

Nama Holdings, LLC v. Greenberg Traurig, LLP,
26 Misc. 3d 1214(A), 2008 WL 7438758 (Sup. Ct. N.Y. Cty. 2008),
aff’d as mod., 62 A.D.3d 578 (1st Dep’t 2009) .......................................................................11

Nat’l Bank v. ESI Grp., Inc.,
167 A.D.2d 453 (2d Dep’t 1990) ...............................................................................................5

O'Brien v. Amman,
21 Misc. 3d 1118(A), 2008 WL 4657790 (Sup. Ct. Allegany Cty. 2008).................................9

Otto v. Otto,
110 A.D.3d 620 (1st Dep’t 2013) ............................................................................................12

P-P Assocs., F.L.P. v. Perez,
No. 150621/15, 2015 WL 5074501 (Sup. Ct. N.Y. Cty. Aug. 24, 2015) ..................................7

Peacock Holdings, Inc. v. Keefe & Keefe, Inc.,
232 A.D.2d 331 (1st Dep’t 1996) ..............................................................................................7

PJSC Nat'l Bank Tr. v. Pirogova,
216 A.D.3d 476 (1st Dep’t 2023) ..............................................................................................5

In re Qudian Sec. Litig.,
189 A.D.3d 449 (1st Dep’t 2020) ............................................................................................12

Richmond Plaza Assoc. v. Santucci,
192 A.D.2d 412 (1st Dep’t 1993) ..............................................................................................8

Saratoga Cty. Chamber of Com., Inc. v. Pataki,
100 N.Y.2d 801 (2003) ..............................................................................................................7

Solomon v. Langer,
66 A.D.3d 508 (1st Dep’t 1999) ................................................................................................8

Stewart Info. Svces. Corp. v. Corporatair LLC,
35 Misc. 3d 1222(A), 2012 WL 1649883 (Sup. Ct. Nassau Cty. 2012) ..................................11

TPZ Corp. v. Rigakos,
226 A.D.2d 445 (1st Dep’t 1996) ..............................................................................................6

Wachovia Bank, N.A. v. Silverman,
84 A.D.3d 611 (1st Dep’t 2011) ................................................................................................3

Zuckerman v. City of N.Y.,
49 N.Y.2d 557 (1980) ................................................................................................................3

iii

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Statutes
CPLR 2201...............................................................................................................................11, 12

CPLR 3213.............................................................................................................................2, 4, 12

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Plaintiff1 respectfully submits this reply memorandum of law in further support of her

motion for summary judgment in lieu of complaint against defendants Randy Abend (“Randy”)

and Ruth Abend (“Ruth” and together with Randy, “Defendants”), and in opposition to Randy’s

cross-motion to stay this proceeding.

PRELIMINARY STATEMENT

In response to Plaintiff’s motion, both Defendants have admitted that they executed the

Note and did not repay the loan, as required by the Note. Plaintiff has therefore established her

right to summary judgment in lieu of complaint.

Nevertheless, Randy—who has been a sophisticated real estate professional employed by

one of the largest real estate firms in the world since 2002 and regularly represents high-profile

corporate tenants—attempts to avoid his obligations by submitting nothing more than bald, self-

serving allegations that Plaintiff’s husband—a non-party to the Note or this action—verbally

represented that the funds Plaintiff loaned to Defendants were a gift. But that claim is not only

refuted by affidavits from Ruth, Plaintiff and her husband, it is irrational, given Randy’s depth of

knowledge of real estate transactions, including promissory notes. But more importantly, his

assertions are directly contradicted by the straightforward and unambiguous written terms of the

Note and therefore barred by the parol evidence rule.

Moreover, every other argument that Randy offers in a desperate attempt to avoid summary

judgment is contrary to well-settled New York law. For example, the fact that Plaintiff did not file

the separate “Security Instrument” referenced in the Note does not suggest that it was never

executed or render summary judgment inappropriate, as Randy contends. Defendants did, in fact,

execute the instrument, but that document merely provided Plaintiff with additional protections

1
Terms not otherwise defined herein have the same meanings as in Plaintiff’s memorandum of law in support of the
instant motion. (NYSCEF Doc. No. 3.)

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against Defendants’ default. New York courts have routinely held that a note’s reference to such

extraneous instruments do not preclude summary judgment in lieu of complaint.

Similarly, Randy’s argument that summary judgment in inappropriate because Plaintiff did

not immediately file an action to enforce the Note is meritless. The First Department has held that

a party’s leniency in enforcing a debt when due in no way alters a counterparty’s contractual

obligations, and it is black letter law that a defense of laches will fail, where, as here, a defendant

fails to establish any prejudice from the delay.

Finally, the Court should reject Randy’s request for a stay of this expedited proceeding

pending the divorce proceeding between Defendants, to which Plaintiff is not even a party. There

is simply no legal basis to stay this action while the divorce proceeding is pending, as the two

actions do not have a substantial identity of parties, claims or requested relief. Furthermore,

Plaintiff, a 79 year-old, should not be required to wait months or even years (if there are appeals)

for the divorce proceeding to conclude, especially since the purpose of a CPLR § 3213 motion for

summary judgment is to expedite actions on instruments for the payment of money only.

Accordingly, Plaintiff respectfully requests that the Court grant her motion for summary

judgment in lieu of complaint and deny Randy’ cross-motion for a stay.

ARGUMENT

POINT I

PLAINTIFF HAS ESTABLISHED HER RIGHT TO
SUMMARY JUDGMENT IN LIEU OF COMPLAINT

It is undisputed that Plaintiff has established, prima facie, that she is entitled to summary

judgment in lieu of complaint on the Note. Significantly, both Defendants have conceded that they

executed the Note and did not pay any amounts to Plaintiff as required. Indeed, Ruth concedes

that she and Randy executed the Note, which required all outstanding amounts due on the loan to

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be paid by November 1, 2017, and that “[t]hose payments were not made.” Ruth Aff. ¶ 5.2 And,

while Randy has concocted several patently meritless defenses (which are refuted in detail below),

he, too, admits that he executed the Note (Randy Aff. ¶ 353) and does not dispute that the debt

referenced therein was never repaid. Nothing else is required for Plaintiff to meet her burden.

Wachovia Bank, N.A. v. Silverman, 84 A.D.3d 611, 612 (1st Dep’t 2011) (“Plaintiff established its

entitlement to judgment as a matter of law by producing the promissory note allegedly executed

by defendants and demonstrating that defendants failed to pay.”); Alard, L.L.C. v. Weiss, 1 A.D.3d

131, 131 (1st Dep’t 2003) (similar).

Given Defendants’ admissions that they have not repaid the loan as required by the Note,

Randy resorts to asserting various defenses based on nothing but his unsubstantiated and self-

serving affidavit. But as the Court of Appeals has repeatedly and consistently held, “one opposing

a motion for summary judgment must produce evidentiary proof in admissible form sufficient to

require a trial of material questions of fact on which he rests his claim or must demonstrate

acceptable excuse for his failure to meet the requirement of tender in admissible form; mere

conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.”

Zuckerman v. City of N.Y., 49 N.Y.2d 557, 563 (1980). Randy’s opposition does not come close

to meeting this fundamental standard.

POINT II

RANDY’S DEFENSES ARE MERITLESS AND SHOULD BE REJECTED

Randy’s affidavit in opposition is far more notable for its blatant, demonstrable,

fabrications and attempts to defame and embarrass Plaintiff’s family than for its legal import. And

2
“Ruth Aff.” refers to the Affidavit of Ruth Abend, sworn to on August 7, 2023. (NYSCEF Doc. No. 23.)
3
“Randy Aff.” refers to the Affidavit of Randy Abend, sworn to on July 24, 2023. (NYSCEF Doc. No. 20.)

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although Randy’s allegations have been completely refuted in the accompanying affidavit of

Plaintiff and her husband, David Rozenholc—as well as in the affidavit already submitted by

Ruth—Randy’s unsupported affidavit fails as a matter of law anyway.

A. Randy’s Claim that the Loan was Actually a Gift Fails to Create an Issue of Fact

Through his affidavit, Randy desperately attempts to create an issue of fact on Plaintiff’s

motion by claiming, without any documentary evidence whatsoever (and contrary to the

documentary evidence), that the money provided to Randy and Ruth was a gift, not a loan. That

assertion is completely contradicted by the language and purpose of the Note.

According to Randy, Plaintiff’s husband, David Rozenholc, “assured” him that the money

was a gift, that Randy “would never be expected to repay the money,” and that “the note was

merely a formality for tax and/or estate planning purpose obligations.” Randy Aff. ¶¶ 31, 38.

Randy relies on these completely unfounded assertions, along with inapposite case law, to argue

that there are triable issues of fact concerning whether the Note is enforceable. Randy Memo. at

pp. 11-14.4 But Randy’s efforts fall flat for several reasons.

1. Randy’s Self-Serving, Unsubstantiated Affidavit is Barred By the Parol
Evidence Rule, and Nevertheless Fails to Create an Issue of Fact

First, Randy’s allegations regarding alleged verbal side agreements and understandings

that the loan was actually a gift contradict the clear, written terms of the Note and are therefore

barred by the parol evidence rule. Such evidence cannot be offered in opposition to a motion for

summary judgment in lieu of complaint pursuant to CPLR § 3213. See, e.g., Eur. Am. Bank v.

Cohen, 183 A.D.2d 453 (1st Dep’t 1992) (granting summary judgment in lieu of complaint on note

and rejecting “defendant’s defenses to the note of waiver, estoppel and an alleged forbearance by

4
“Randy Memo.” refers to Randy’s memorandum of law in opposition to the instant motion and in support of his
cross-motion for a stay. (NYSCEF Doc. No. 21.)

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oral agreement, all of which are barred by the parol evidence rule or the Statute of Frauds”);

Friends Lumber Inc. v. Cornell Dev. Corp., 243 A.D.2d 886, 887-88 (3d Dep’t 1997) (internal

citations omitted) (rejecting defendant’s claims that “he was fraudulently induced into executing

the notes based upon oral representations by plaintiff's officers and agents that the one-year term

would not be enforced” since, inter alia, the “evidence in support of this claim is limited to

[defendant]’s own general and unsubstantiated allegations[,]” and “most importantly,

[defendant]’s claim in this regard is inconsistent with the unambiguous terms of the promissory

notes themselves and therefore is barred by the parol evidence rule”); Nat’l Bank v. ESI Grp., Inc.,

167 A.D.2d 453 (2d Dep’t 1990) (rejecting defense that plaintiff “orally promised to extend the

due date specified in the various notes” since “proof of such an oral promise may not serve as the

basis for contradicting the express terms of the instruments themselves.”); Gross v. Fruchter, 230

A.D.2d 710, 711 (2d Dep’t 1996) (“The defendant’s allegation that there was an oral agreement

that he would not have to repay the note until his financial condition improved is barred by the

parol evidence rule.”).

Second, under controlling case law, Randy cannot defeat summary judgment by

contradicting the clear, written terms of the Note with conclusory, self-serving allegations,

especially when Ruth has already admitted that the loan was not a gift, and that Randy’s narrative

is complete fiction. See Ruth Aff. ¶¶ 3-6, 9; Lexon Ins. Co. v. Sanare Energy Partners, LLC, No.

654170/2020, 2021 WL 722847, at *5-6 (N.Y. Sup. Ct. 2021) (rejecting “conclusory, self-serving”

statements in affidavit concerning “the factual circumstances surrounding the instruments” which

did not “provide grounds to second-guess the clear and unconditional terms of the Promissory

Note and Guaranty”); PJSC Nat'l Bank Tr. v. Pirogova, 216 A.D.3d 476, 476 (1st Dep’t 2023)

(affirming summary judgment in lieu of complaint where “defendant failed to raise an issue of

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material fact sufficient to defeat summary judgment, as she offered only conclusory allegations

that the [subject] judgments were fabricated”); TPZ Corp. v. Rigakos, 226 A.D.2d 445 (1st Dep’t

1996) (“The defendants’ unsubstantiated, conclusory allegations of lack of consideration and fraud

in the inducement were insufficient to defeat the plaintiff's motion for summary judgment in lieu

of complaint.”).

Randy’s reliance on Greenleaf v. Lachman, 216 A.D.2d 65 (1st Dep’t 1995) is misplaced.

There, the First Department held that a note was unenforceable, since the record overwhelmingly

evidenced that neither the note holder nor the obligor ever intended for the debt to be binding. In

particular, the record evidenced that a stepfather deposited $500,000 into a bank account for the

benefit of his stepson, and although both parties knew that the deposit was a gift, two years later,

the stepson agreed to provide his stepfather with a non-interest-bearing promissory note for

$500,000 so that the stepfather could avoid paying gift tax. Because the record was clear that the

plaintiff stepfather orchestrated the scheme to evade his tax obligations, the Court affirmed

summary judgment in favor of the stepson, as any other result would contravene public policy.

Greenleaf bears no resemblance to this case. Randy has presented no evidence whatsoever

that the loan was actually a gift or that Plaintiff required a Note for the purposes of evading tax

obligations. And, unlike the note at issue in Greenleaf, the Note in this case evidenced a legitimate,

interest-bearing loan that Randy admits was executed simultaneously with other real estate-related

documents at the closing of his former house. Randy Aff. ¶¶ 34-36. Randy simply cannot create

an issue of fact concerning the Note’s enforceability by offering baseless, defamatory allegations.5

5
Randy also claims that Dayan v. Yurkowski, 238 A.D.2d 541 (2d Dep’t 1997) is a “substantially similar case,” but
there, the Second Department reversed the denial of summary judgment in lieu of complaint because the defendant
presented evidence creating an issue of fact concerning whether he was “fraudulently induced to execute the note
based upon representations that the money advanced was a gift rather than a loan, and that the note was intended to
reflect the fact that the gift was a pre-testamentary disposition to the plaintiffs' daughter.” Id. While the Court did not
detail the evidence that the defendant submitted—and there is no published record of the underlying decision
containing such details—here, Randy has submitted no evidence whatsoever that the loan was intended to be a gift.

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And, even if Randy had submitted actual evidence to support his proffered defense (though he

could not have), the First Department has held, subsequent to Greenleaf, that, in accordance with

the parol evidence rule, a court should reject “evidence offered to show that [] promissory notes

and security agreements in issue were fraudulent shams to defraud the IRS, entered into to make

what was actually a gift, or at most a conditional loan, look like an unconditional promise to pay.”

Peacock Holdings, Inc. v. Keefe & Keefe, Inc., 232 A.D.2d 331 (1st Dep’t 1996).

Third, that Plaintiff did not immediately seek repayment does not create an issue of fact as

to whether the Plaintiff’s loan was actually a gift, as Randy argues. Randy Memo. at 13-14.

Tellingly, Randy fails to cite a single case in which a court denied a party summary judgment in

lieu of complaint because the party waited a period of time before enforcing the defendant’s

obligation. That is unsurprising, since the law is plainly to the contrary: a note holder’s leniency

in enforcing a note in no way alters the obligor’s responsibilities under it. See, e.g., Genger v.

Genger, 123 A.D.3d 445, 446 (1st Dep’t 2014) (“We reject [defendant]’s contention that

[plaintiff]’s delay in demanding payment establishes that the notes and stock purchase agreement

were not intended to be enforced, since ‘[i]ndulgence or leniency in enforcing a debt when due is

not an alteration of the contract’”); P-P Assocs., F.L.P. v. Perez, No. 150621/15, 2015 WL

5074501, at *1 (Sup. Ct. N.Y. Cty. 2015) (defendant lacked meritorious defense that a loan

memorialized by a note was “actually a gift as evidenced by the lack of enforcement for three

years”).6

6
Nor is there merit to Randy’s claim that Plaintiff’s claim should be barred by laches. Randy Memo. at 15-17. Randy’s
only claim of prejudice from Plaintiff’s temporary forbearance on enforcing the debt is his alleged “financial strain
and the waste of time and resources” that Randy is expending to defend himself in this action. Id. at 6. But every
defendant must expend time and resources to defend itself in a lawsuit, Randy would have had to do so even if Plaintiff
filed this action earlier, and he does not cite to any case law standing for such an absurd proposition. The only case
Randy cites is Saratoga Cty. Chamber of Com., Inc. v. Pataki, 100 N.Y.2d 801 (2003), where the Court of Appeals
rejected a laches defense.

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2. Randy’s Unsupported Assertion that Mr. Rozenholc Induced Him to Sign
the Note is Legally Irrelevant, as He Was Not a Party to the Note

Moreover, even if the Court were to consider Randy’s uncorroborated allegations that

Plaintiff’s husband, non-party Mr. Rozenholc, verbally told him that the funds to purchase the

Connecticut home were a “gift” with “no strings attached” and the Note would never be enforced,

such statements would have no bearing on the enforceability of the Note (Randy Aff. ¶¶ 30, 38),

which is an agreement solely between Plaintiff and Defendants; Mr. Rozenholc is not a party.

Significantly, Randy does not even allege that Plaintiff ever made such representations to him, that

Plaintiff was present when Mr. Rozenholc made such alleged representations, or that Plaintiff was

even aware that Mr. Rozenholc made such alleged representations.

Thus, even assuming the truth of Randy’s false allegations (which, as stated above, are

barred by the parol evidence rule), they would provide no basis for denying summary judgment.

Under New York law, a party may not assert a fraudulent inducement defense based upon the

alleged misrepresentation of a non-party to the agreement at issue. See, e.g., Richmond Plaza

Assoc. v. Santucci, 192 A.D.2d 412 (1st Dep’t 1993) (“Defendant failed to rebut plaintiff’s prima

facie showing that the promissory note was valid and that defendant failed to make payment …

Defendant’s conclusory allegations that his investment subscription was fraudulently obtained is

of no avail because the alleged misrepresentation was committed by defendant’s investment

advisor, not plaintiff.”); Solomon v. Langer, 66 A.D.3d 508 (1st Dep’t 1999) (granting summary

judgment in lieu of complaint on promissory note and dismissing defense that plaintiff’s mother

discharged the note and adding that “the parol evidence rule bars consideration of defendant’s

purported oral agreement with plaintiff's mother regarding payment of the loan”).

To the extent Randy claims that Mr. Rozenholc’s alleged representations bound Plaintiff

under a theory of agency, that argument fails as well, since a spouse is not an agent of the other,

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and a spouse’s statements or conduct cannot be imputed to the other merely by virtue of their

marriage. O'Brien v. Amman, 21 Misc. 3d 1118(A), 2008 WL 4657790, at *3 (Sup. Ct. Allegany

Cty. 2008) (“The court is not permitted to impute such knowledge to Mark Amman solely because

he is the husband of Carol Amman.”); J.B. Sterling Co. v. Verhelle, 397 F. Supp. 3d 286, 295

(W.D.N.Y. 2019) (“Plaintiff has not adduced any evidence of participation by [the wife] in the

negotiation of the Contract, or cited any facts that would support the conclusion that she ratified

its terms. . . . Plaintiff cannot demonstrate that [the husband] was acting as [the wife’s] implied

agent based on nothing more than their marital relationship.”); In re Adoption of Martz, 102 Misc.

2d 102, 112 (Fam. Ct. 1979) (“There is no claim of any agency existing between husband and wife

to form the basis of imputing the knowledge of the agent to the principal. Any basis for the

imputation of the wife's knowledge to the husband has to rest upon the marital relationship alone

which is wholly insufficient.”), aff’d sub. nom., 77 A.D.2d 281 (3d Dep’t 1980), aff’d, 54 N.Y.2d

417 (1981), aff’d judgment sub. nom., 463 U.S. 248 (1983).

B. Defendants Liability Under the Note is Clear; The “Security Instrument”
Referenced Therein Has No Bearing on Plaintiff’s Unambiguous Right to Repayment

In support of her Motion, Plaintiff submitted all that she needed to establish her entitlement

to judgment as a matter of the law, including a copy of the Note, which contains unambiguous

repayment terms. Indeed, the Note provided (i) for the accrual of 6% interest per annum on the

outstanding Principal of $2,922,500.00 until the Principal was paid in full (Note § 2); (ii) that

Defendants would be required to make an interest payment by November 1, 2012, with the balance

of all amounts due November 1, 2017 (id. § 3); and (iii) that if Defendants failed to pay, Defendants

would be in default, required to pay a 5% late charge, and liable for the costs and expenses that

Plaintiff incurred to enforce her right to repayment. Id. §§ 6(A), (B), (E), 8.

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In opposition, Randy argues that the Note “was never finalized nor meant to be binding”

because Section 10 of the Note references that the parties would also enter into a separate “Security

Instrument” which would provide Plaintiff (not Defendants) with certain protections “[i]n

addition” to those provided under the Note. See Note § 10 (emphasis added). Randy therefore

contends that because the Security Instrument was not initially included in this summary

proceeding, “the Note was either incomplete when signed or was never intended to be binding and

enforceable or expired upon the sale of the secured property.” See Randy Memo. at pp. 14-15.

Randy’s argument is incorrect in every respect. The Note was fully executed, as was the

Security Instrument referenced therein, which is titled “Open-End Mortgage Deed.” See Weiner

Reply Aff., Ex. A. Furthermore, that separate instrument has no bearing on the Note or

Defendants’ obligations thereunder; it simply provides Plaintiff with a security interest in the

property that Defendants purchased with the proceeds of the loan. Id. If anything, that instrument

reinforces Defendants’ obligations, as it reaffirms that Defendants were required to repay the loan

by the Maturity Date. Id. at p. 1.

Moreover, New York courts have uniformly rejected similar arguments, as it is well-settled

that summary judgment in lieu of complaint on a promissory note is appropriate where it contains

an unambiguous promise to repay, even where the note references separate instruments or

agreements. See, e.g., Embraer Fin. Ltd. v. Servicios Aereos Profesionales, SA, 42 A.D.3d 380,

381 (1st Dep’t 2007) (“The plain language of the promissory note at issue establishes as a matter

of law defendant's absolute, unconditional obligation to pay . . . and incorporates by reference the

terms and conditions of the companion sale agreement only to the extent necessary for the

enforcement of the note. Consequently, the two agreements are not inextricably intertwined and

CPLR 3213 is applicable.”); Craven v. Rigas, 71 A.D.3d 1220, 1222-23 (3d Dep’t 2010)

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(“Although the note references the underlying stock purchase agreement, the reference serves only

to describe the security interest that plaintiff reserved in the stock and does not constitute a situation

where proof beyond the note is necessary.”); Stewart Info. Svces. Corp. v. Corporatair LLC, 35

Misc. 3d 1222(A), 2012 WL 1649883, at *7 (Sup. Ct. Nassau Cty. 2012) (“The Court is not

persuaded by [defendant]’s argument that the [] Guaranty is not properly the subject of CPLR §

3213 treatment because it refers to obligations contained in extraneous agreements and

instruments”).

POINT III

THERE IS NO BASIS TO STAY THIS PROCEEDING

Apparently aware that his liability under the Note is clear, Randy attempts to delay the

inevitable by cross-moving for a stay, asserting that “the Promissory Note – to the extent

enforceable at all – should be part of the calculation of the marital property” and therefore, “a stay

of [this action] is appropriate while the Divorce Action proceeds.” Randy Memo. at 17-18. But

that argument is at odds with the relevant standard for a stay under New York law and is illogical.

A stay pending a determination of another proceeding pursuant to CPLR 2201 should be

granted only where there is a substantial identity of parties, overlap of legal issues and relief

sought. Bd. of Managers of the Cobblestone Lofts Condo. v. McMahon, No. 150076/2020, 2022

WL 2188567, at *3 (Sup. Ct. N.Y. Cty. June 10, 2022) (denying motion for a stay pursuant to

CPLR 2201, since the other “action will not resolve all the issues in this action, and the two actions

pose little risk of inconsistent rulings”); Nama Holdings, LLC v. Greenberg Traurig, LLP, 26 Misc.

3d 1214(A), 2008 WL 7438758, at *3 (Sup. Ct. N.Y. Cty. 2008) (“Although substantial (rather

than complete) identity of the parties is adequate . . . , the two proceedings at issue here lack even

substantial identity of the parties because the only defendants in this action . . . are not parties to

the Pending Arbitration.”), aff’d as mod., 62 A.D.3d 578 (1st Dep’t 2009)

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Furthermore, the First Department has consistently held that a stay pursuant to CPLR 2201

pending another action is inappropriate where the decision in the other action would not determine

all of the questions in the case at bar. In re Qudian Sec. Litig., 189 A.D.3d 449, 449 (1st Dep’t

2020) (“There is no basis for a stay of this action pursuant to CPLR 2201 since the decision in the

federal action will not determine all of the questions in this action.”); Otto v. Otto, 110 A.D.3d

620, 621 (1st Dep’t 2013) (“There is no basis for a stay of the action pursuant to CPLR 2201 since

the decision in the Surrogate Court proceeding will not determine all of the questions in this

action.”).

Here, there is no substantial identity of parties—indeed, Plaintiff is a complete stranger to

the divorce proceeding between Defendants—and there is no substantial identity of the claims or

relief sought. In fact, it is indisputable that there are no overlapping questions in the two unrelated

proceedings and that the divorce proceeding will not determine whether Defendants are liable to

Plaintiff under the Note. This action will therefore need to proceed to its conclusion regardless of

the determinations in the divorce proceeding, rendering a stay inappropriate.

Moreover, a stay would only serve to delay this proceeding; it would not promote

efficiency, and a stay is therefore improper. Mt. McKinley Ins. Co. v. Corning Inc., 33 A.D.3d 51,

59 (1st Dep’t 2006) (“To stay proceedings as to these matters will only promote delay, not

efficiency and constitutes an abuse of discretion.”). Indeed, a stay would defeat the very purpose

of a CPLR 3213 proceeding, namely, to provide expedited relief for a breach of an instrument for

the payment of money only. And, such a delay would prejudice Plaintiff, who is 79 years-old, and

who should not be required to wait months or years for Defendants’ completely unrelated divorce

proceedings to conclude before obtaining judgment. The Court should therefore deny Randy’s

cross-motion for a stay. See Ferber v. Fairfield Greenwich Grp., 28 Misc. 3d 1214(A), 2010 WL

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2927274, at *4 (Sup. Ct. N.Y. Cty. 2010) (“A stay of an action can easily be a drastic remedy, on

the simple basis that justice delayed is justice denied. It should therefore be refused unless the

proponent shows good cause for granting it.”).

CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that the Court grant the instant

motion in its entirety and deny Randy’s cross-motion for a stay.

Dated: New York, New York
August 24, 2023 HERRICK, FEINSTEIN LLP

By /s/ Scott Mollen
Scott Mollen, Esq.
Samuel J. Bazian, Esq.
2 Park Avenue
New York, NY 10016
(212) 592-1400
Attorneys for Plaintiff

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Certification of Word Count Compliance

Plaintiff, through her counsel, Herrick, Feinstein LLP, hereby certify that the body of the

within memorandum of law contains 4,198 words (excluding the caption, table of contents, table

of authorities, signature block, and images).

Dated: New York, New York
August 24, 2023 HERRICK, FEINSTEIN LLP

By /s/ Scott Mollen
Scott Mollen, Esq.
2 Park Avenue
New York, NY 10016
(212) 592-1400
Attorneys for Plaintiff

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Case Info

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August 24, 2023

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Motion-Secondary: Dena K. Weiner v. Randy Abend, Ruth Abend

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