Geelan Mechanical Corp. v. Dember Const. Corp.
| Decision Date | 21 November 1983 |
| Citation | 468 N.Y.S.2d 680,97 A.D.2d 810 |
| Parties | , 37 UCC Rep.Serv. 1458 GEELAN MECHANICAL CORP., Appellant, v. DEMBER CONSTRUCTION CORP., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Skoy & Lowell, Mineola (Robert L. Pryor, Mineola, of counsel), for appellant.
Postner & Rubin, New York City (Thomas G. DeLuca, New York City, of counsel), for respondent.
Before MOLLEN, P.J., and THOMPSON, RUBIN and BOYERS, JJ.
MEMORANDUM BY THE COURT.
In an action to recover on an account stated and for breach of a construction contract, plaintiff appeals from a judgment of the Supreme Court, Nassau County, entered May 9, 1983, which, inter alia, dismissed the complaint on the merits.
Judgment affirmed, without costs or disbursements.
The defendant construction company was the general contractor for the construction of the "A-7 Restaurant" in the World Trade Center. It subcontracted the plumbing work to the plaintiff. The contract between the parties consisted of a standard form construction subcontract together with a rider which specified the nature and quality of the work to be performed on the project. In the course of performance, a dispute arose between the parties as to the amount due for work and extras on the contract. Defendant sent plaintiff a check, dated November 17, 1980, bringing its total payments to $160,717.43. The face of the check bore the following notation: "Accepted in Full & Final Payment on all Contract extras--C.O.'s etc". Plaintiff, before cashing the check, added the following notation: "Subject to any claims by Geelan Mechanical Corp. against Dember Construction Corp." Plaintiff claimed that defendant still owed it $25,351.04. Plaintiff thereafter commenced the instant action to recover the sum claimed. Defendant then moved to dismiss the complaint. Special Term granted the motion, holding that "plaintiff's acceptance of the payment offered by defendant in full satisfaction of the disputed claim constituted an accord and satisfaction which defeats the plaintiff's claim in this action". Judgment was entered dismissing the complaint on the merits, and this appeal ensued.
We affirm.
It is undisputed that, under the common law of contracts, there would be in this case, as a matter of law, an accord and satisfaction of the disputed claim (see Manfredi Constr. Corp. v. Green Fan Co., 87 A.D.2d 611, 448 N.Y.S.2d 43). However, for contracts involving the sale of goods, section 1-207 of the Uniform Commercial Code provides:
.
It is equally undisputed that, if this provision applied there would be no accord and satisfaction herein (see Braun v. C.E.P.C. Distr., 77 A.D.2d 358, 433 N.Y.S.2d 447). The New York appellate courts have several times addressed this issue in the context of construction...
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Horn Waterproofing Corp. v. Bushwick Iron & Steel Co., Inc.
...121; Hanna v. Perkins (2 UCC Rep.Serv. 1044). Some courts in this State have ruled otherwise: Geelan Mechanical Corp. v. Dember Constr. Corp., 97 A.D.2d 810, 468 N.Y.S.2d 680 (2d Dept.); Schenectady Steel Co. v. Trimpoli Gen. Constr. Co., 43 A.D.2d 234, 350 N.Y.S.2d 920 (3d Dept.), affd on ......
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Horn Waterproofing, Corp. v. Bushwick Iron & Steel Co., Inc.
...purpose of the contract, namely the erection of the steel beams. A recent case in this court, Geelan Mechanical Corp. v. Dember Constr. Corp., 97 A.D.2d 810, 468 N.Y.S.2d 680, involved a similar situation to the one at bar. The plaintiff entered into a standard construction subcontract to p......
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US v. Consolidated Edison Co. of NY
...Dep't), appeal dismissed, 48 N.Y.2d 705, 422 N.Y.S.2d 68, 397 N.E.2d 758 (1979). But see Geelen Mechanical Corp. v. Dember Constr. Corp., 97 A.D.2d 810, 468 N.Y.S.2d 680 (App.Div. 2d Dep't 1983) (U.C. C.'s reservation of rights provision does not govern dispute over plumbing services); Blot......
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