TLC Medical Transportation Services Inc. v. Syracuse City School District

133 A.D.2d 529, 519 N.Y.S.2d 901, 1987 N.Y. App. Div. LEXIS 50009

Opinion

Order unanimously affirmed with costs. Memorandum: Special Term properly denied defendant’s motion for summary judgment in this breach of contract action. Defendant failed to prove that the release clause it relies upon, contained in an unsigned document, was a part of the contract between the parties. Moreover, even if it were proven that this clause is a part of the contract, questions of fact exist whether the city’s payment and the plaintiff’s acceptance of the sum of $175, which was less than the amount of plaintiffs last invoice, not denominated a "final payment”, and made several months after issue was joined in this lawsuit, operates as a release of plaintiffs claims. (Appeal from order of Supreme Court, Onondaga County, Grow, J. — summary judgment.) Present — Callahan, J. P., Doerr, Boomer, Balio and Lawton, JJ.