Ellis George LLP, New York (Jeffrey A. Mitchell of counsel), for appellant.

Fried, Frank, Harris, Shriver & Jacobson LLP, New York (Janice Mac Avoy of counsel), for respondent.

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered July 2, 2024, which granted plaintiff's motion for summary judgment in lieu of complaint, unanimously reversed, on the law, with costs, the motion denied in its entirety, and the matter converted to a plenary action and remanded for further proceedings consistent with this decision.

Supreme Court should not have granted plaintiff's motion for summary judgment in lieu of complaint under CPLR 3213 on defendant's guaranty of the sublease between plaintiff as sublandlord and the nonparty subtenant. The parties' dispute is intertwined with plaintiff's dispute with the subtenant over its obligations to perform certain restoration work under the sublease. Although it is well established that an unconditional guaranty of both payment and performance obligations in certain circumstances may give rise to relief under CPLR 3213, here, "this procedural avenue is foreclosed if the liabilities and obligations can only be ascertained by resort to evidence outside the instrument, or if more than simple proof of nonpayment or a de minimis deviation from the face of the document is involved" (Kerin v Kaufman, 296 AD2d 336, 337 [1st Dept 2002]). Thus, because the guaranty permits the guarantor to raise payment and performance as a defense and there is a colorable dispute as to whether the amount due has been satisfied, CPLR 3213 relief is not available (see 549 LLC v Luna, 219 AD3d 1209, 1209 [1st Dept 2023]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 6, 2025