Complete Messenger & Trucking Corp. v. Merrill Lynch Money Markets, Inc. ( 1991 )

Order, Supreme Court, New York County (Kristin Booth Glen, J.), entered on or about September 29, 1989, which, inter alia, denied plaintiff’s motion pursuant to CPLR 3211 (b) to dismiss the affirmative defense of accord and satisfaction, raised in the amended answer of defendant Merrill Lynch Money Markets, Inc. (Merrill Lynch), or, in the alternative, for partial summary judgment pursuant to CPLR 3212, dismissing the affirmative defense, is affirmed with costs and disbursements payable by plaintiff.

Plaintiff, a New York corporation providing messenger, delivery and pickup services nationwide, commenced the underlying action seeking to recover $310,000 in damages for the alleged breach of a letter agreement, dated June 1, 1983, between the plaintiff and A.G. Becker & Co., whose interests were subsequently acquired by defendant Merrill Lynch through a merger acquisition. Plaintiff’s complaint alleged that defendant Merrill Lynch, in September of 1984, improperly canceled, without cause, the parties’ agreement providing that the plaintiff would serve as the exclusive messenger and delivery service to A.G. Becker & Co.

Specifically, on September 21, 1984, Nancy Vincent, an attorney representing the successor in interest of A.G. Becker & Co., Becker Paribas, allegedly informed plaintiff’s president, Leonard Santorelli, by telephone, that Becker Paribas was terminating the parties’ contract due to the recent merger acquisition of Becker by defendant Merrill Lynch, and by subsequent letter, dated September 24, 1989, accompanied by a check in the amount of $46,107, notified the plaintiff of the termination of the letter agreement, effective December 31, 1984. Although plaintiff cashed that check without protest, nevertheless, by letter dated October 3, 1984, plaintiff’s counsel rejected Becker’s termination notice and indicated that the plaintiff would continue to provide services under the parties’ agreement.

The acceptance of a check in full settlement of a disputed unliquidated claim without reservation operates as an accord and satisfaction discharging the claim since the theory underlying the common-law rule of accord and satisfaction is that the parties have entered into a new contract discharging all or part of their obligations under the original contract. (Merrill Lynch Realty/Carll Burr v Skinner, 63 NY2d 590, 596, rearg denied 64 NY2d 885.)

However, such agreements are enforceable only when the person receiving the check has been clearly informed that acceptance of the amount offered will settle or discharge a legitimately disputed unliquidated claim. (Supra, at 596.)

An essential element of an accord and satisfaction is a clear manifestation of intent by one tendering less than full payment of an unliquidated claim that the payment has been sent in full satisfaction of the disputed claim (see, Itoh & Co. v Honerkamp Co., 99 AD2d 417, 418). While the dissent finds the affirmative defense of accord and satisfaction deficient as a matter of law, its discussion of the deposition testimony of Ms. Vincent relating to the letter, as well as her earlier conversation with plaintiffs president Leonard Santorelli, establishes the existence of factual issues which are then summarily decided by the dissent on the basis of its own interpretation of the facts. Thus, the dissent notes that "Ms. Vincent never testified that the payments represented 'full payment’ for the contract balance. Indeed, she testified to the contrary”. However, Ms. Vincent’s letter, alluded to by the dissent, specifically states "Becker Paribas recognizes no obligation under the [Letter] Agreement to make any payments * * * after December 31, 1984” (emphasis added). Further, as the IAS court noted, the letter refers explicitly to an earlier extensive telephone conversation between Ms. Vincent and Mr. Santorelli.

The dissent finds the letter "insufficient to effect an accord since it does no more than announce Becker’s intention to cancel the contract” and " 'does not * * * evidence a clear intent to alter or modify the original contractual terms or settle a dispute concerning them’ ” (quoting Merrill Lynch Realty/Carll Burr v Skinner, 63 NY2d 590, 597, supra). The dissent further finds that the prior telephone conversation between Ms. Vincent and the president of plaintiff would constitute parol evidence since "there is no notification to that effect on either the check or the letter”. However, the letter states in pertinent part "As we discussed on September 21, 1984 * * * Becker Paribas will no longer require the messenger and delivery services provided by the Corporation”. (Emphasis added.) The Court of Appeals has noted in Merrill Lynch Realty/Carll Burr v Skinner (supra) that parties to a contract may cancel such contract and extinguish all liability in a number of ways. One of these modalities may be that: "One of the parties could propose an accord, including substituted performances * * * which, if accepted, would be enforceable” (supra, at 598). Here, as the IAS court noted in its decision, there is a possible interpretation of the facts herein that Becker, pursuant to discussion, agreed to prepay an amount due in the future and continue the contract in force for three months as part of an accord and satisfaction with plaintiff. Thus, examination of extrinsic evidence is required to determine the intent of the parties as to whether or not they intended to enter into an accord.

The IAS court properly denied summary judgment dismissing the defense inasmuch as triable issues of fact, dependent upon a determination as to the credibility and intent of the parties, were raised as to whether the defendant’s tender of payment, under the circumstances, and plaintiffs acceptance of the $46,107 check constituted an accord and satisfaction sufficient to bar plaintiffs claim. Concur—Ross, Asch and Smith, JJ.