Holding A Note That References Another Document? It Still May Permit You To Obtain Summary Judgment in Lieu of Complaint


In Zyskind v. FaceCake Marketing Technologies, Inc., Index No. 651240/10 (Sup. Ct., NY County, Dec. 15, 2010) (“FaceCake Marketing”), Justice Bernard J. Fried granted summary judgment in lieu of complaint to plaintiffs Beryl Zyskind and Joel Gold, holding that ten notes issued to them (the "Notes") on account of investment loans they made to the defendant, FaceCake Marketing Technologies, Inc. ("FaceCake"), were instruments "for the payment of money only."

On September 28, 2004, Beryl Zyskind and Joel Gold (the "Plaintiffs") each executed separate, identical stock purchase agreements with FaceCake (the "Agreements"). Under the terms of the Agreements, Plaintiffs each promised to invest $625,000 in FaceCake. In exchange for each investment, Zyskind and Gold were to receive a corresponding note and FaceCake stock.

Pursuant to the Agreements and in exchange for each investment loan made by Zyskind and Gold, FaceCake issued the Notes to the Plaintiffs, totaling $650,000. Each Note recited a sum certain to be paid to the holder of the Note. Each Note also contained an unconditional promise to pay and a waiver of all defenses to enforcement of the Note, stating that "[t]he obligations to make the payments provided for in this Note are absolute and unconditional and not subject to any defense, set-off, counterclaim, rescission, recoupment, or adjustment whatsoever."

Please see full article below for more information.

LOADING PDF: If there are any problems, click here to download the file.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Sheppard Mullin Richter & Hampton LLP | Attorney Advertising

Written by:


Sheppard Mullin Richter & Hampton LLP on:

JD Supra Readers' Choice 2016 Awards
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.