Tay v Lon Silvers

[*1] Tay v Lon Silvers 2005 NYSlipOp 50431(U) Decided on March 31, 2005 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-750 S C

VICTORIA TAY, Appellant,

against

LON SILVERS AND JACKSON HEWITT TAX SERVICE, Respondents.

Appeal by plaintiff from a small claims judgment of the District Court, Suffolk County (J. Flanagan, J.), entered on April 28, 2004, dismissing the action.

Judgment unanimously affirmed without costs.

In this small claims action for breach of contract, plaintiff's negotiation of defendants' check representing payment of the arbitrator's award in favor of plaintiff constituted an accord and satisfaction (see Platt v Helmsley Spear, 2003 NY Slip Op 50627[U] [App Term, 1st Dept]). There is no evidence contained in the record showing that plaintiff negotiated the check under protest. Furthermore, by accepting the benefit of the arbitrator's award, plaintiff cannot seek a trial de novo (see Crystal Ridge Assoc. v Pascal, 2003 NY Slip Op 50669[U] [App Term, 2d & 11th Jud Dists]). Thus, there is no basis to disturb the judgment of the court below. [*2]
Decision Date: March 31, 2005