Ellman v. Chatwal

Appellate Division of the Supreme Court of New York

Ellman v. Chatwal

209 A.D.2d 287

Appellate Division of the Supreme Court of the State of New York·Decided November 17, 1994·Published·Cited by 2 cases

Opinion

—Order, Supreme Court, New York County (Carol Huff, J.), entered March 11, 1993, which granted plaintiff’s motion for summary judgment, unanimously affirmed, with costs.

In this action to recover accelerated employment contract payments under guarantees given by defendants, the Notice of Default with respect to the bi-weekly salary period ending Sunday, April 12, 1992 was valid although sent by registered mail after close of business on Friday, April 17, 1992 when payment, conceded by defendants to be due at least by that date pursuant to business practices, had not been received. Even if the Notice was premature, the court properly applied the "erroneous date rule” (Kent & Sons v Helena Rubinstein, Inc., 47 NY2d 561, 566). Finally, there was no showing that plaintiff, by accepting payment after the Notices of Default and Termination had been served, manifested an intentional waiver of the right to enforce the acceleration (see, Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 968). Concur— Sullivan, J. P., Wallach, Ross, Rubin and Williams, JJ.

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—Order, Supreme Court, New York County (Carol Huff, J.), entered March 11, 1993, which granted plaintiff’s motion for summary judgment, unanimously affirmed, with costs.

In this action to recover accelerated employment contract payments under guarantees given by defendants, the Notice of Default with respect to the bi-weekly salary period ending Sunday, April 12, 1992 was valid although sent by registered mail after close of business on Friday, April 17, 1992 when payment, conceded by defendants to be due at least by that date pursuant to business practices, had not been received. Even if the Notice was premature, the court properly applied the "erroneous date rule” (Kent & Sons v Helena Rubinstein, Inc., 47 NY2d 561, 566). Finally, there was no showing that plaintiff, by accepting payment after the Notices of Default and Termination had been served, manifested an intentional waiver of the right to enforce the acceleration (see, Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 968). Concur— Sullivan, J. P., Wallach, Ross, Rubin and Williams, JJ.

Ellman v. Chatwal, 209 A.D.2d 287 (N.Y. Ct. App. 1994).

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