of the instrument and a failure to make
the payments called for by its terms, the
procedure might lead into objections and
detours about the propriety of invoking
CPLR 3213, and end up creating delay
instead of expediting recovery. The
rule thus should be used only in clear
cut cases. There is much case law
debating what qualifies as an instrument
for the payment of money only, but
courts generally agree that the two
quintessential examples are promissory
notes and dishonored checks.
Happily, it is possible to structure
transactions to maximize the availability
of this procedure. In an acquisition, for
example, an instrument for deferred
purchase price can be drafted to be
uncluttered with reference to extraneous
documents or other factors. Indeed,
an express statement might be added
to the effect that the instrument is one
for the payment of money only within
the meaning of CPLR 3213. And New
York is very liberal in enforcing a forum
selection clause in commercial contracts,
so a provision can be inserted into the
instrument, and the other transactional
documents, choosing New York law and
submitting to jurisdiction in appropriate
New York courts, to ensure that the
expedited procedure is available.