Port Auth. of N.Y. & N.J. v. White Near Coastal Towing Corp. , 2020 NY Slip Op 05306 ( 2020 )

Port Auth. of N.Y. & N.J. v White Near Coastal Towing Corp. (2020 NY Slip Op 05306)

Port Auth. of N.Y. & N.J. v White Near Coastal Towing Corp.

2020 NY Slip Op 05306

Decided on October 01, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 01, 2020
Before: Gische, J.P., Oing, Singh, Mendez, JJ.

Index No. 450945/2018 Appeal No. 11899 Case No. 2019-3794

[*1]The Port Authority of New York and New Jersey, Plaintiff-Appellant,

v

White Near Coastal Towing Corp., Defendant-Respondent.

Blodnick, Fazio & Clark, Babylon (Adam Crowley of counsel), for appellant.

The Port Authority of New York and New Jersey Law Department, New York (Brian P. Hodgkinson of counsel), for respondent.

Order, Supreme Court, New York County (Tanya R. Kennedy, J.), entered February 6, 2019, which granted plaintiff's motion for summary judgment in lieu of complaint, pursuant to CPLR 3213, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff's motion for summary judgment in lieu of complaint should have been denied. Because the payment obligation in the parties' agreement is conditioned on defendant's having failed to operate the subject tug boat within a particular geographic area for at least 80% of its running time over a period of years, the agreement is not an

instrument for the payment of money only, and accelerated judgment under CPLR 3213 is not available to plaintiff (see Kerin v Kaufman , 296 AD2d 336, 337—338 [1st Dept 2002]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 1, 2020