Opinion
March 16, 2000.
Appeal from an order of the Supreme Court (Malone Jr., J.), entered September 10, 1999 in Albany County, which denied plaintiff's motion for summary judgment in lieu of complaint.
Nixon, Peabody Law Firm (Robert S. McEwan Jr. of counsel), Albany, for appellant.
Berger Du Charme (Joseph C. Berger of counsel), Clifton Park, for respondent.
Before: Cardona, P.J., Crew III, Carpinello, Graffeo and Mugglin, JJ.
MEMORANDUM AND ORDER
On this motion for summary judgment in lieu of complaint, plaintiff seeks to recover $102,220, plus interest, from defendant pursuant to a one-page written agreement between the parties entitled "Settlement Terms". By this document, defendant agreed to pay plaintiff "exactly $302,220.00" (emphasis supplied) to reimburse it for engineering fees incurred on a local school construction project. Said reimbursement was to be made in four installments of $100,000, $50,000, $50,000 and $102,220, to be paid on October 2, 1998, October 8, 1998, November 30, 1998 and December 15, 1998, respectively. Defendant's failure to make the final payment prompted the instant action. Notably, the agreement also stated that:
With the exception of the first payment, the timing of which is firm, the payment dates are estimates and are based on estimated project progress which will determine when the customer approves payment and [defendant], in turn, receives payment from the project financier. However, in no circumstance shall the timing of the second and third scheduled payments deviate later than 30 days after the current estimated payment date. Moreover, the final scheduled payment shall, in no circumstance, deviate later than 45 days after the current estimated payment date. That is, by the end of the day on January 30, 1999, [defendant] will have submitted to [plaintiff] full payment of the aforementioned $302,220 (emphasis supplied).
Finding the above passage ambiguous, Supreme Court denied plaintiff's motion. We now reverse.
As an initial matter, we find that the written agreement between the parties was indeed an "instrument for the payment of money only" within CPLR 3213 such that this summary remedy was available to plaintiff (see, Weissman v. Sinorm Deli, 88 N.Y.2d 437, 444; Interman v. Indus. Prods. v. R.S.M. Electron Power, 37 N.Y.2d 151, 155; compare, Diversified Investors Corp. v. Diversifax Inc., 239 A.D.2d 231, 233, lv dismissed 90 N.Y.2d 935; Torres Leonard v. Select Professional Realties, 118 A.D.2d 467). Moreover, we find that the agreement contains "a clear, unambiguous and unconditional promise to pay a specified sum on a specified date" (DH Cattle Holdings Co. v. Kuntz, 165 A.D.2d 568, 569 [emphasis supplied]). Specifically, the language outlined in the above-cited passage unambiguously obligated defendant to pay a sum certain, namely, $302,220, within a specified period of time, namely, by January 30, 1999.
Proof of the agreement, which was signed by defendant's president, together with proof that the final payment was never made satisfied plaintiff's burden of coming forward with prima facie evidence of the instrument and a default thereunder (see, Corvetti v. Hudson, 252 A.D.2d 787, 788; Judarl v. Cycletech Inc., 246 A.D.2d 736, 737). Defendant, in turn, failed to come forward with evidentiary proof demonstrating the existence of a triable issue of fact with respect to a bona fide defense (see, Judarl v. Cycletech Inc., supra). The assertion of defendant's president that its obligation to pay was conditional is belied by the unambiguous language in the agreement. To this end, we note that the issue of whether a contract is ambiguous is in the first instance an issue of law within the province of the court (see,Estate of Hatch v. NYCO Mins., 245 A.D.2d 746, 747). The only "conditions" attached to defendant's obligation to pay related to the timing of the four installments and even these "conditions" were limited such that "in no circumstance" would the last payment be made later than January 30, 1999. Supreme Court therefore erred in denying plaintiff's motion.
Cardona, P.J., Crew III, Graffeo and Mugglin, JJ., concur.
ORDERED that the order is reversed, on the law, with costs, motion granted and summary judgment awarded to plaintiff.