Newmark Partners, L.P. v. Singer

Summary

The Appellate Division, First Department affirmed a $3,028,109.59 judgment for Newmark Partners, L.P. under a rescission and settlement agreement and dismissed an appeal from the underlying order as subsumed in the judgment appeal. The court held that the agreement qualified as an instrument for the payment of money only under CPLR 3213, that joinder of an additional jointly and severally liable party was permissible rather than necessary, and that contractual non-reliance provisions barred the defendants’ fraud defenses under Delaware law. The court also concluded that document-delivery provisions did not constitute conditions precedent to payment.

Holdings

1. Dismissal was not required because Schwartz and defendants were jointly and severally liable, making CPLR 1002 governing permissible joinder relevant rather than CPLR 1001 governing necessary joinder.
2. Section 5.3 of the Rescission and Settlement Agreement was an instrument for the payment of money only within the meaning of CPLR 3213.
3. Plaintiff established a prima facie case for recovery under CPLR 3213 by submitting evidence of the amounts due, including an attorney affirmation based on personal knowledge and documentation of payments and the bankruptcy trustee's clawback.
4. Defendants did not raise a triable issue of fact through their fraud defenses because the agreement's non-reliance provision barred reliance on extra-contractual representations and defendants supplied no competent evidence supporting fraudulent inducement.
5. The document-delivery provisions were not conditions precedent to defendants' payment and did not alter their promise to pay; they therefore did not preclude CPLR 3213 treatment of section 5.3.

Questions Presented

1. Whether Elchonon Schwartz was an indispensable or necessary party whose absence required dismissal.
2. Whether the Rescission and Settlement Agreement, particularly section 5.3, was an instrument for the payment of money only enforceable under CPLR 3213.
3. Whether plaintiff established a prima facie case for summary recovery under CPLR 3213.
4. Whether defendants raised a triable issue through a fraudulent-inducement, fraudulent-omission, or fraudulent-concealment defense.
5. Whether document-delivery provisions in other parts of the agreement constituted a condition precedent to defendants' payment obligations.

Disposition

affirmed