Opinion
1112-1112A
June 18, 2002.
Judgment, Supreme Court, New York County (Walter Tolub, J.), entered March 5, 2001, awarding plaintiff the principal amount of $29,000 plus interest and costs, and bringing up for review an order, same court and Justice, entered on or about January 8, 2001, which granted plaintiff's motion for summary judgment in lieu of a complaint, unanimously affirmed, with costs. Appeal from the order entered January 8, 2001, unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.
CANDICE D. AIKEN, for Plaintiff-respondent.
JED R. SCHLACTER, for Defendants-appellants.
Buckley, J.P., Sullivan, Lerner, Friedman, JJ.
Contrary to defendant's contentions, the settlement agreement in question can form the basis of a motion for summary judgment in lieu of a complaint since it is an instrument for the payment of money only (see,J.D. Structures, Inc. v. Waldbaum, 282 A.D.2d 434) . Plaintiff, accordingly, made out a prima facie case by proof of the instrument and defendant's failure to make payments required pursuant thereto (see,Interman Indus. Prods. V R.S.M. Electron Power, Inc., 37 N.Y.2d 151, 155). Defendants, for their part, have not met their consequent burden to raise a triable issue as to a defense to the instrument (see, Boland v. Indah Kiat Fin. (IV) Mauritius, Ltd., 291 A.D.2d 342, 739 N.Y.S.2d 122). Although defendants urge that pursuant to paragraph 7 of the settlement agreement they are liable for only $14,000, when the agreement is read as a whole it is clear that defendants agreed to pay plaintiff a total of $100,000, and since it is undisputed that only $71,000 of that amount has been paid, the balance due under the settlement agreement is, as the motion court found, $29,000. While paragraph 7 of the parties' agreement afforded plaintiff the option, in the event of defendants' default, of filing affidavits by defendants confessing to judgment in the amount of $85,000 less amounts already paid by them, it did not foreclose plaintiffs from suing upon the settlement agreement itself, which, as noted, evidenced defendants' unconditional obligation to pay plaintiff no less than $100,000.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.