Park Union Condominium v 910 Union Street, LLC
Supreme Court of the State of New York, Appellate Division, First Department, June 30, 2016
Plaintiff, a residential Board of Managers of a condominium, commenced this action against the defendant/sponsor as a result of the sponsor’s default under a Settlement Agreement which settled certain claims related to defendant’s defective construction of the condominium. In the Settlement Agreement, defendant agreed to an installment plan to pay a sum certain and to execute general releases. Defendant, however, did not request that plaintiff provide any indemnification or agreement to “hold harmless” from claims asserted by third parties. Plaintiff complied with all of the terms of the agreement and defendant failed to make the first payment and demanded a “hold harmless” agreement in defendant’s favor. Plaintiff did not agree to the new condition and filed a motion for summary judgment in lieu of complaint on the grounds that the agreement was an instrument for payment of money only and no payment was made thereunder. The Supreme Court denied plaintiff’s motion on the grounds that questions of fact remained precluding summary judgment.
On appeal, the Appellate Division reversed finding that that the defendant failed to raise an issue of fact and held that “[t]he agreement contained an unconditional promise 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.” The Appellate Division found unavailing defendant’s argument that plaintiff intentionally concealed the fact that individual unit owners filed claims with insurance.