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TRAVELERS INS. CO. v. S/S DJATISARI

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


December 7, 1983

THE TRAVELERS INSURANCE COMPANY, C. ITOH & COMPANY (AMERICA), INC., Plaintiffs,
v.
S/S DJATISARI, S/S HADJI AGUS SALIM, S/S RATULANGIE, S/S DJATIPRANA, their engines, boilers, tackles, etc., P.T. DJAKARTA LLOYD, JAKARTA LLOYD P.T. PERUSAHANNA PELAYARAN SAMUDRA, Defendants.

The opinion of the court was delivered by: SPRIZZO

OPINION & ORDER

SPRIZZO, D.J.:

 Plaintiff, Travelers Insurance Co., moves for summary judgment against defendant shipowner, P. T. Djakarta Lloyd, in the amount of $9,190.77, representing the unliquidated balance plus interest of an agreed upon settlement of $11,108.43.

 The underlying cause of action which was settled by the parties arose from marine damage to cargo carried by defendant's vessels which resulted in plaintiff being compelled to pay claims to its insureds. There is no dispute as to defendant's liability on the settlement, since defendant admits having agreed to it.

 In opposing plaintiff's motion, defendant claims that summary judgment is inappropriate because plaintiff accepted and negotiated drafts tendered by defendant in accordance with a payment schedule, and thereby agreed that payment should be made in accordance with that schedule. However, where, as here, there is no factual dispute as to the existence and amount of an agreed settlement, summary judgment may properly be granted notwithstanding the existence of a payment schedule. Aetna Insurance Co. et al. v. S/S Coban, et al., 81 Civ. 4089 (HFW).

 Furthermore, in this case, the facts alleged are insufficient to establish that plaintiff had entered into an agreement to be bound by the payment schedule. Indeed, it is more reasonable to conclude that plaintiff deposited defendants' checks in partial satisfaction of past due sums owed under this settlement.

 In any event, plaintiff is still entitled to summary judgment because defendant's tender of an unsigned check in March 1983 and the sending of a letter by its agents on April 29, 1983 expressing an inability to make a payment in April 1983, as a matter of law constituted a breach and repudiation of the alleged agreement which relieved plaintiff from any and all obligations thereunder.

 Accordingly, plaintiff is granted summary judgment in the amount of $9,190.77 plus costs. Plaintiff is directed to submit a judgment to the Court within ten days.

 It is SO ORDERED.

19831207

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