Moweta v. Citywide Home Improvements of Queens, Inc.

267 A.D.2d 438, 700 N.Y.S.2d 845, 1999 N.Y. App. Div. LEXIS 13291

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

Opinion

—In an action, inter alia, to recover damages for fraud, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Lisa, J.), dated June 9, 1998, as granted that branch of the motion of the defendants NationsCredit Financial Services Corporation and Chrysler First Financial Services Corporation of America pursuant to CPLR 3211 (a) (1) which was to dismiss the amended complaint insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly determined, based on the documentary evidence (see, CPLR 3211 [a] [1]), that the plaintiffs ratified the subject contract, note, and mortgage by making payments thereon to the respondents for five years without protest, and in so doing, waived all claims sounding in fraud (see, Eldon Group Am. v Equiptex Indus. Prods. Corp., 236 AD2d 329; Paramount Ins. Co. v Brown, 205 AD2d 464, 465; Lindenwood Dev. Corp. v Levine, 178 AD2d 633; Edison Stone Corp. v 42nd St. Dev. Corp., 145 AD2d 249).

The documentary evidence also established that the plaintiffs and the respondent NationsCredit Financial Services Corporation (hereinafter NationsCredit) reached an accord and satisfaction when NationsCredit accepted an offer, made by the plaintiffs through their attorney, to settle the plaintiffs’ account for $5,000 (see, Congregation Chachmei Sefarad v Dickman, 198 AD2d 395; Couri v Westchester Country Club, 186 AD2d 712, 714).

In light of the foregoing, the court properly granted that branch of the respondents’ motion pursuant to CPLR 3211 (a) (1) which was to dismiss the amended complaint insofar as asserted against them. Mangano, P. J., Thompson, Altman and Luciano, JJ., concur.