Blottner, Derrico, Weiss & Hoffman, P.C. v. Fier

Citation101 Misc.2d 371,420 N.Y.S.2d 999
Parties, 27 UCC Rep.Serv. 882 BLOTTNER, DERRICO, WEISS & HOFFMAN, P.C., Plaintiff, v. Sol FIER and Supercity Meats, Inc., Defendants.
Decision Date16 October 1979
CourtNew York City Court
OPINION

CHARLES H. COHEN, Judge.

This is an action by plaintiff against defendants to recover for legal services rendered by plaintiff to a third party which the defendant, Supercity Meats, Inc., agreed to pay. Defendants have interposed an affirmative defense alleging that " . . . plaintiff accepted a check which had been previously tendered in full settlement of all obligations owed to plaintiff by the defendants and such acceptance created and constituted an accord and satisfaction between the parties."

Defendants have brought this motion for summary judgment based upon such affirmative defense. Plaintiff's opposition to this motion is based upon a claim that there was no bona fide dispute and therefore the acceptance of the check did not constitute an accord and satisfaction.

The basic facts are not in dispute. The defendant, Supercity Meats, Inc., in a letter addressed to it dated August 2, 1978, agreed " . . . to pay for reasonable counsel fees incurred after the date hereof, provided that the amount of all such fees has been approved in advance by you. I will consult with you before directing my counsel to take any further action in the matter." Plaintiff was the counsel referred to in that letter and performed certain legal services.

Plaintiff then submitted a bill in the amount of $1,868.40. Thereafter, following a telephone conversation between plaintiff and defendants' attorney in which the latter stated that his clients desired an itemized statement indicating the hours expended on the services performed, plaintiff submitted such an itemized statement and bill in the amount of $2,043.40.

Shortly thereafter, defendant sent plaintiff a check in the amount of $1,250.00 together with a letter dated January 10, 1978, the body of which reads as follows:

"We are in receipt of your statements dated October 25, 1978 addressed to Mr. George Gabe as updated on November 7, 1978. We have reviewed the statements and consider them to be excessive. However, we are tendering our check in the amount of $1,250.00 to you. If accepted, this check shall be considered to be full payment of all obligations for services rendered by you and disbursements incurred by you for George Gabe, Super City Meats, Inc., or Sol Fier."

After a further conversation between plaintiff and defendants' attorney, the plaintiff deposited the check in the amount of $1,250.00.

Plaintiff takes the position that defendants did not specifically indicate the basis upon which they regarded the bill as excessive and argues that there is at least a question of fact as to whether there was a bona fide dispute.

The applicable law is clear. It is well settled that where an amount due is in dispute, and the debtor sends a check for less than the amount claimed, and clearly expresses his intention that the check has been sent as payment in full, and not on account or in part payment, the cashing or retention of the check by the creditor is deemed an acceptance of the conditions stated and operates as an accord and satisfaction of the claim. Fuller v. Kemp, 138 N.Y. 231, 33 N.E. 1034; Nassoiy v. Tomlinson, 148 N.Y. 326, 42 N.E. 715; Schuttinger v. Woodruff, 259 N.Y. 212, 181 N.E. 361; Carlton Credit Corp. v. Atlantic Refining Co., 12 A.D.2d 613, 208 N.Y.S.2d 622, affd. 10 N.Y.2d 723, 219 N.Y.S.2d 269, 176 N.E.2d 837.

The question presented here is whether under the facts, even as alleged by the plaintiff, there is a triable issue of fact as to whether there was a bona fide dispute. Plaintiff asserts that it was orally agreed that plaintiff's services were to be billed at the rate of $100 per hour and since defendants, upon receipt of plaintiff's bill, did not specifically question the number of hours expended by them on the matter in question, there was no bona fide dispute.

Even assuming there was an agreement with respect to this rate although the letter dated August 2, 1978 does not make reference to any rate but refers to "reasonable" counsel fees, and defendants' attorney says he has no recollection of any agreed rate there may still be...

To continue reading

Request your trial
12 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT