Brookman & Brookman, P. C. v. DeStefano

261 A.D.2d 338, 690 N.Y.S.2d 428, 1999 N.Y. App. Div. LEXIS 5777

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 27, 1999
• Status: Published

Opinion

—Order, Supreme Court, New York County (Elliott Wilk, J.), entered October 9, 1998, which, in an action to recover attorneys’ fees, denied plaintiff law firm’s renewed motion for summary judgment dismissing defendant clients’ fourth affirmative defense of accord and satisfaction, and denied defendants’ cross motion to preclude plaintiff from using certain affidavits of the individual defendants and for sanctions, unanimously affirmed, without costs.

An issue of fact exists as to whether the oral accord alleged by defendants was executed by plaintiff’s deposit of a check after one of the individual defendants told plaintiff’s principal, who allegedly did not object, that such check would constitute the final payment for plaintiff’s legal services. To the extent such accord was executed, defendants would have a legally sufficient defense of accord and satisfaction (cf., General Obligations Law § 15-501 [2]), and plaintiffs renewed motion for summary judgment was therefore properly denied (see, Denburg v Parker Chapin Flattau & Klimpl, 82 NY2d 375, 384). The court also properly denied defendants’ cross motion to the extent it sought to preclude plaintiff from using certain affidavits, since defendants did not establish that plaintiff failed to disclose information that ought to have been disclosed pursuant to CPLR article 31 (CPLR 3126). The court’s denial of defendants’ cross motion to the extent that it sought sanctions for plaintiff’s unsuccessful renewal of the motion to dismiss the accord and satisfaction defense was proper under the circumstances. Concur — Nardelli, J. P., Tom, Mazzarelli, Lerner and Buckley, JJ.