Drezin v Schwartzberg

[*1] Drezin v Schwartzberg 2016 NY Slip Op 50077(U) Decided on January 22, 2016 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 22, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
15-318

Michael Drezin, Plaintiff-Respondent,

against

Ray Schwartzberg, Defendant-Appellant.

Defendant appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Eddie J. McShan, J.), dated January 2, 2015, as denied his motion for summary judgment dismissing that portion of the first cause of action relating to plaintiff's April 2, 2014 statement of account and, upon searching the record, granted partial summary judgment to plaintiff on this claim in principal sum of $1,550.

Per Curiam.

Order (Eddie J. McShan, J.), dated January 2, 2015, insofar as appealed from, modified by vacating the grant of partial summary judgment to plaintiff; as modified, order affirmed, without costs.

We sustain the denial of defendant's motion for partial summary judgment on his accord and satisfaction defense. In the absence of any evidence establishing that there was a genuine dispute over plaintiff's (April 2, 2014) bill for unpaid legal services in the amount of $4,469.75, plaintiff's acceptance of a check for a lesser amount, tendered by defendant with a letter indicating that the check was in "full payment" of the bill, did not establish an accord and satisfaction as a matter of law (see Horn Waterproofing Corp. v Bushwick Iron & Steel Co., 66 NY2d 321 [1985]; Century 21 Kaaterskill Realty v Grasso, 124 AD2d 316 [1986]; TransWorld Grocers v Sultana Crackers, 257 AD2d 616 [1999]).

The motion court erred, however, in searching the record and granting partial summary judgment to plaintiff. Defendant's motion only addressed the accord and satisfaction and documentary evidence defenses. Since defendant's remaining defenses were not the subject of the underlying motion, plaintiff cannot obtain summary judgment upon a search of the record (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]; LaBarba v Morrell & Co., Wine Emporium, 272 AD2d 165 [2000], lv dismissed 95 NY2d 897 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: January 22, 2016