Nwulu-Njoku v Azuaru

[*1] Nwulu-Njoku v Azuaru 2014 NY Slip Op 51878(U) Decided on December 23, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., SOLOMON and ELLIOT, JJ.
2013-1857 K C

Blessing M. Nwulu-Njoku, Respondent,

against

Joy Azuaru, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered July 15, 2013. The order denied defendant's motion to, among other things, mark the judgment satisfied.

ORDERED that the order is affirmed, without costs.

In this small claims action to recover the principal sum of $3,000 for money plaintiff had loaned defendant, the case was submitted to arbitration, and, following an arbitration hearing, an award was made in plaintiff's favor in the principal sum of $3,000. A judgment was subsequently entered thereon. Thereafter, defendant tendered a check to plaintiff in the sum of $1,500 bearing a notation, "Settlement in Full." Plaintiff cashed the check. Defendant then moved to, among other things, mark the judgment satisfied. The Civil Court denied the motion.

On appeal, defendant contends that the matter has been settled since plaintiff accepted her check that was marked "Settlement in Full."

Contrary to defendant's contention, plaintiff's acceptance of her check did not constitute an accord and satisfaction. It is well settled that "acceptance of part payment of a liquidated claim is no defense to an action for the balance, even where part payment is in the form of a check reciting that it is in full settlement, in the absence of a signed agreement or some consideration which is new or collateral to the partial payment" (19A NY Jur 2d, Compromise, Accord, and Release § 18; see Old Oak Realty v Polimeni, 232 AD2d 536 [1996]; Patel v Orma, 190 AD2d 782 [1993]; Commissioners of State Ins. Fund v Crown, 65 Misc 2d 593 [App Term, 1st Dept 1970]). Consequently, the Civil Court properly denied defendant's motion.

Accordingly, the order is affirmed.

Pesce, P.J., Solomon and Elliot, JJ., concur.

Decision Date: December 23, 2014