Opinion
CA 01-01714
June 14, 2002.
Appeal from an order of Supreme Court, Erie County (Mahoney, J.), entered June 20, 2001, which, inter alia, granted plaintiff's motion for summary judgment in part.
COSTELLO, COONEY FEARON, LLP, SYRACUSE (JOHN K. LANGEY OF COUNSEL), DADD NELSON, PC, ATTICA, FOR DEFENDANTS-APPELLANTS.
HODGSON RUSS LLP, BUFFALO (KEVIN M. KEARNEY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, SCUDDER, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum:
Plaintiff commenced this action to recover sums allegedly due under an agreement referred to by the parties as the "shortfall agreement." Supreme Court properly granted plaintiff's motion for summary judgment in part and denied defendants' cross motion for summary judgment dismissing the second amended complaint. "A court in its effort to determine the true character of an instrument must look at the nature of the right rather than to the name the parties gave it" ( City of New York v. Pennsylvania R.R. Co., 37 N.Y.2d 298, 300; see Richmond Children's Ctr. v. Fireman's Fund Ins. Cos., 128 A.D.2d 849). Pursuant to the shortfall agreement, plaintiff is to receive compensation for the decrease in value of the premises it leases in a shopping plaza resulting from the absence of additional anchor tenants. Although the shortfall agreement labels such compensation "Rent Reimbursement Payments," the court properly determined that defendants' obligation to make payments under the shortfall agreement is not dependent upon plaintiff's actual payment of rent.