In Kerin v. Kaufman, 296 AD2d 336, 745 N.Y.S.2d 22 (1st Dept 2002), the defendants' obligation to pay money was contingent upon the plaintiff refraining from making disparaging comments about her former employer.
In a separate proceeding, the former employer had claimed that Kerin had made disparaging comments, but the court rejected these claims on the merits. See Sage Realty Corp. v. Kerin, 281 AD2d 334, 723 N.Y.S.2d 12 (1st Dept 2001).
When Kerin filed her suit, the defendants asserted that CPLR 3213 was inappropriate because Kerin had made disparaging comments, referring to the very same comments out of which the earlier dispute arose.
Kerin contended that CPLR 3213 was appropriate as there was no issue of fact to be resolved before judgment could be made since res judicata precluded the defendants claim that she had made disparaging comments.
The court instead agreed with the defendants' contention that "res judicata invokes an excursion outside the four corners of the agreement, and is thus unavailable under the statute." Kerin at 337.
The court went on to explain the grounds for its holding:
"Plaintiff maintains that prior litigation has now removed all obstacles to what was previously a conditional obligation. But the availability of CPLR 3213 can never depend upon the occurrence (or nonoccurrence) of any unrelated future event. As Weissman instructs, in order for an agreement to qualify for this unique form of accelerated judgment, it must conform to the statutory definition when read immediately upon execution; terms and conditions precedent that remain unresolved within the instrument itself cannot be satisfied by future events requiring proof dehors the agreement." (Kerin at 338.)