Rosenthal & Rosenthal, Inc. v. Simon Paston & Sons Agency, Inc.

—Order, Supreme Court, New York County (Walter M. Schackman, J.), entered on or about February 7, 1994, which denied the respective motion and cross-motion for summary judgment by defendant Continental Insurance Co. and plaintiff Rosenthal & Rosenthal, Inc., unanimously affirmed, without costs.

The IAS Court properly found that there are unresolved questions of fact concerning whether the insured and/or plaintiff, the loss payee under the subject policy of insurance, received proper notice of the purported sublimit imposed by defendant Continental Insurance Co., whether there was any consideration for the purported change in coverage and whether plaintiff’s acceptance of a check for partial payment for the loss suffered by the insured constituted an accord and satisfaction of the full amount of the claim, thereby precluding summary judgment to either plaintiff or Continental.

It is undisputed that no one at defendant insurance company ever contacted the insured or plaintiff to advise of the imposition of a sublimit or mailed a notice to either of them, and it is not clear if valid notice was provided by the agent, defendant Simon Paston & Sons Agency, Inc. Moreover, in the absence of an unambiguous manifestation that acceptance of the check was in complete settlement of the disputed claim, not here apparent, the party making less than full payment is not entitled to summary judgment (see, Complete Messenger & Trucking Corp. v Merrill Lynch Money Mkts., 169 AD2d 609). Concur—Murphy, P. J., Sullivan, Rosenberger and Asch, JJ.