Fleischman v New York Life Ins. & Annuity Corp.

Fleischman v New York Life Ins. & Annuity Corp. 2012 NY Slip Op 01785 Decided on March 13, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 13, 2012
Tom, J.P., Saxe, Acosta, DeGrasse, Román, JJ.
7091 106772/10

[*1]Herman Fleischman, etc., Plaintiff-Respondent,

v

New York Life Insurance and Annuity Corporation, Defendant-Appellant.




Drinker Biddle & Reath LLP, New York (Stephen R. Harris of
counsel), for appellant.
Lipsius-BenHaim Law, LLP, Kew Gardens (Ira S. Lipsius of
counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered September 19, 2011, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The motion, which was based on the theory of accord and satisfaction, was properly denied since defendant failed to show that there was a "clear manifestation of intent by the parties that the payment was made, and accepted, in full satisfaction of the claim" (Nationwide Registry & Sec. v B & R Consultants, 4 AD3d 298, 300 [2004]; see Manley v Pandick Press, 72 AD2d 452 [1980], appeal dismissed 49 NY2d 981 [1980]). Here, there was nothing on the refund check or in the letter enclosing the check that indicated that the check was tendered only on the condition that it was in full payment of the disputed claim (see Nadel v Manhattan Life Ins. Co., 211 AD2d 900, 902 [1995]; compare Sarbin v Southwest Media Corp., 179 AD2d 567 [1992]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 13, 2012

CLERK