New York City Economic Development Corp. v. New York Surety Co. , 660 N.Y.S.2d 437 ( 1997 )

—Order, Supreme Court, New York County (Walter Schackman, J.), entered January 11, 1996, which granted plaintiffs motion for summary judgment in lieu of complaint while denying defendant’s cross motion for summary judgment, unanimously modified, on the law, without costs, to the extent of denying plaintiffs motion, and otherwise affirmed. Judgment, same court and Justice, entered January 30, 1996, which awarded plaintiff $171,873.97 on the underlying order, unanimously reversed, on the law, without costs, and the matter remanded for further proceedings.

The bid bond in question was not a straightforward forfeiture bond, but rather required an additional act in order to trigger payment, viz., the sustaining of damages upon the award of the contract to another party. This was not “an unconditional promise to pay a sum certain” (Weissman v Sinorm Deli, 88 NY2d 437, 444); something more than simple proof of nonpayment was required. Since such a conditional obligation cannot be considered, in the classic sense, an instrument for the payment of money only, this action is not eligible for accelerated judgment under CPLR 3213. Concur—Wallach, J. P., Rubin, Williams and Andrias, JJ.