Caldwell v. Unger

177 A.D.2d 982, 578 N.Y.S.2d 3, 1991 N.Y. App. Div. LEXIS 15727

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1991
• Status: Published

Opinion

unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant’s motion for summary judgment dismissing plaintiff’s complaint based on the affirmative defense of accord and satisfaction. "An essential element of an accord and satisfaction is a clear manifestation of intent by one tendering less than full payment of an unliquidated claim that the payment has been sent in full satisfaction of the disputed claim” (Itoh & Co. v Honerkamp Co., 99 AD2d 417, 418; see, Hudson v Yonkers Fruit Co., 258 NY 168, 174). The person receiving the payment must have "been clearly informed that acceptance of the amount offered will settle or discharge a legitimately disputed unliquidated claim” (Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 NY2d 590, 596, rearg denied 64 NY2d 885). Here, no writing on the proffered check or in the correspondence accompanying it denoted that the check was being offered in full settlement of the disputed claim or that the acceptance and negotiation of the check would constitute an accord and satisfaction. (Appeal from Order of Supreme Court, Onondaga County, Miller, J.—Summary Judgment.) Present—Denman, J. P., Boomer, Green, Pine and Davis, JJ.