Cohen Marketing International, Inc. v. National Equity Corp.

Appellate Division of the Supreme Court of New York

Cohen Marketing International, Inc. v. National Equity Corp.

267 A.D.2d 152, 700 N.Y.S.2d 18, 1999 N.Y. App. Div. LEXIS 13223

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 21, 1999

StatusPublished

This text of 267 A.D.2d 152 (Cohen Marketing International, Inc. v. National Equity Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cohen Marketing International, Inc. v. National Equity Corp., 267 A.D.2d 152, 700 N.Y.S.2d 18, 1999 N.Y. App. Div. LEXIS 13223 (N.Y. Ct. App. 1999).

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Opinion

—Or[153]*153der, Supreme Court, Bronx County (Bertram Katz, J.), entered November 9, 1998, which, in an action by a borrower against its factor to recover a prepayment penalty, incurred because defendant allegedly forced plaintiff to terminate the loan early, denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

While the payoff amount set forth in the termination agreement, which plaintiff signed, establishes the aggregate amount defendant loaned to plaintiff less the aggregate amount defendant collected on plaintiff’s accounts receivable, and in that sense could be characterized as an account stated (see, Shea & Gould v Burr, 194 AD2d 369, 370), such agreement is not a complete defense to the action. The agreement, which is in the form of a letter addressed to plaintiff’s new factor and terminates defendant’s right, title and interest in plaintiff’s assets, contains no indication that plaintiff was relinquishing the claim it now asserts against defendant arising out of the allegedly coerced termination of the loan. We note that defendant’s motion papers did not address plaintiff’s allegations that it was “forced” to enter into the termination agreement and that the payoff amount includes a prepayment penalty. Concur — Sullivan, J. P., Rosenberger, Nardelli, Williams and Friedman, JJ.

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—Or[153]*153der, Supreme Court, Bronx County (Bertram Katz, J.), entered November 9, 1998, which, in an action by a borrower against its factor to recover a prepayment penalty, incurred because defendant allegedly forced plaintiff to terminate the loan early, denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

While the payoff amount set forth in the termination agreement, which plaintiff signed, establishes the aggregate amount defendant loaned to plaintiff less the aggregate amount defendant collected on plaintiff’s accounts receivable, and in that sense could be characterized as an account stated (see, Shea & Gould v Burr, 194 AD2d 369, 370), such agreement is not a complete defense to the action. The agreement, which is in the form of a letter addressed to plaintiff’s new factor and terminates defendant’s right, title and interest in plaintiff’s assets, contains no indication that plaintiff was relinquishing the claim it now asserts against defendant arising out of the allegedly coerced termination of the loan. We note that defendant’s motion papers did not address plaintiff’s allegations that it was “forced” to enter into the termination agreement and that the payoff amount includes a prepayment penalty. Concur — Sullivan, J. P., Rosenberger, Nardelli, Williams and Friedman, JJ.

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Bluebook (online)

267 A.D.2d 152, 700 N.Y.S.2d 18, 1999 N.Y. App. Div. LEXIS 13223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-marketing-international-inc-v-national-equity-corp-nyappdiv-1999.

Opinion

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