Dario Marchione General Contractor, Inc. v. David R. Cassara-Associates

129 A.D.2d 973, 514 N.Y.S.2d 287, 1987 N.Y. App. Div. LEXIS 45630

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 3, 1987
• Status: Published

Opinion

Order unanimously affirmed with costs. Memorandum: Defendant appeals from Special Term’s order which denied its motion to dismiss based on documentary evidence and payment. On appeal defendant asserts that dismissal should be granted because there has been an accord and satisfaction. We disagree. Inasmuch as this ground for dismissal was not raised at Special Term, it will not be considered on appeal (see, Pietropaoli Trucking v Nationwide Mut. Ins. Co., 100 AD2d 680). Moreover, the restrictive language on the face of the check created an issue of fact whether plaintiff was clearly informed that its acceptance discharged all claims (see, Conboy, McKay, Bachman & Kendall v Armstrong, 110 AD2d 1042, 1043). (Appeal from order of Supreme Court, Monroe County, Patlow, J.—dismiss complaint.) Present—Callahan, J. P., Denman, Balio, Lawton and Davis, JJ.