Samuel-Rozenbaum v. C. Harris Goldman Diamond Co.

262 A.D.2d 206, 693 N.Y.S.2d 15, 1999 N.Y. App. Div. LEXIS 7421

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 22, 1999
• Status: Published

Opinion

—Order, Supreme Court, New York County (Alice Schlesinger, J.), entered July 21, 1998, which, in an action for goods sold and delivered, insofar as appealed from, granted defendants’ motion for summary judgment dismissing the complaint, and imposed a sanction of $3,500 against plaintiff to be paid to defendants’ attorney, unanimously affirmed, with costs.

Assuming in plaintiff’s favor that the $175,000 claim it sues on was settled not through a substituted agreement but rather an accord and satisfaction, under which plaintiff executed a stipulation of discontinuance and general releases in exchange for defendants’ promise to pay $100,000 immediately and $15,000 upon receipt of certain insurance proceeds, plaintiff fails to offer any evidence to support its claim that the $15,000 check defendants offered in satisfaction of the accord was not supported by sufficient funds, i.e., the insurance proceeds contemplated in the accord and satisfaction (see, Condo v Mulcahy, 88 AD2d 497). Furthermore, no reason appears why plaintiff sues for the full $175,000 it demanded in the first action when, pursuant to the accord and satisfaction, it accepted and retained a $100,000 payment; why plaintiff sued the individual defendant, who is not shown to have guaranteed payment of the goods sold to the corporate defendant; why plaintiff failed to acknowledge the corporate defendant’s bankruptcy proceeding; and why plaintiff made scurrilous allegations of wrongdoing having no apparent relevance to the issue of payment. Accordingly, the sanction was warranted. Concur — Sullivan, J. P., Mazzarelli, Lerner, Rubin and Saxe, JJ.