Park Union Condominium v 910 Union St., LLC

Park Union Condominium v 910 Union St., LLC 2016 NY Slip Op 05243 Decided on June 30, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 30, 2016
Mazzarelli, J.P., Renwick, Moskowitz, Gische, Gesmer, JJ.
1644 650291/15

[*1]The Park Union Condominium, et al., Plaintiffs-Appellants, —

v

910 Union Street, LLC, Defendant-Respondent.

Schwartz Sladkus Reich Greenberg Atlas LLP, New York (Ethan A. Kobre of counsel), for appellants.

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Anna A. Higgins of counsel), for respondent.

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered July 13, 2015, which denied plaintiffs' motion for summary judgement in lieu of complaint, unanimously reversed, on the law, with costs, and the motion granted.

Plaintiffs, a condominium and its board of managers, established that the parties' settlement agreement, covering claims related to defendant's construction of the condominium, constituted "an instrument for the payment of money only" (CPLR 3213) and that defendant defaulted by failing to make payment under its terms (see Tongkook Am. v Bates , 295 AD2d 202 [1st Dept 2002]). In opposition, defendant failed to raise a triable issue as to a defense to the instrument (id. ). The agreement contained an unconditional promise by defendant to pay plaintiffs upon the execution of releases attached to the agreement, and it required no additional performance by plaintiffs as a condition precedent to payment or otherwise made defendant's promise to pay something other than unconditional (see Stevens v Phlo Corp. , 288 AD2d 56 [1st Dept 2001]).

We have considered the defenses raised, including that plaintiffs intentionally concealed that the condominium's individual unit owners had made claims to their insurer related to defendant's construction of the condominium, and find them unavailing as a matter of law.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 30, 2016

CLERK