Pincus-Litman Co., Inc. v. Canon U.S.A., Inc., PINCUS-LITMAN
| Decision Date | 22 December 1983 |
| Docket Number | PINCUS-LITMAN |
| Citation | 469 N.Y.S.2d 756,98 A.D.2d 681 |
| Parties | CO., INC., Plaintiff-Respondent, v. CANON U.S.A., INC., Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
A.P. Rosiny, New York City, for plaintiff-respondent.
N. Moloshok, New York City, for defendant-appellant.
Before KUPFERMAN, J.P., and SULLIVAN, ASCH, SILVERMAN and MILONAS, JJ.
Order of the Supreme Court, New York County, entered June 21, 1983, which, inter alia, denied defendant's motions for summary judgment as well as for a default judgment and which also granted plaintiff's cross-motion for an extension of time to reply to defendant's counterclaim, is affirmed, without costs.
The commission checks sent by defendant to plaintiff which plaintiff deposited did not operate as an accord and satisfaction of the claim. The checks tendered to plaintiff Pincus-Litman Co., Inc. each had a printed box with lines in the left-hand portion of its face. The appropriate month, year, and a notation reading "Sales Rep Commissions" was added in handwriting. Above the box in extremely small print is the legend "Endorsement of This Check is Accepted in Full Payment of the Following Account." Presumably, every check issued by defendant for whatever purpose bears such a printed legend, even if it is simply a routine payment to any creditor of an undisputed bill.
Initially, we note that where employed at all, this portion of a check is usually devoted to the bookkeeping records of the payor. The additional material was not placed where a recipient would normally expect a restrictive endorsement, nor was the miniscule size of the printed legend reasonably calculated to give the plaintiff notice. Examination of the check, without checking the records, might well have lulled the plaintiff's employees into believing that the amount tendered was the amount sought. There was no indication that a compromise figure was being offered on a "take it or leave it basis."
"An essential component of an accord and satisfaction is a clear manifestation of intent by the debtor tendering less than full payment of a disputed unliquidated debt, that the payment has been sent in full satisfaction of the disputed claim [citations omitted]" (Manley v. Pandick Press, 72 A.D.2d 452, 454, 424 N.Y.S.2d 902). In the instant case there has been no such clear intent shown, particularly where, as here, summary judgment is sought.
We have examined the remaining contentions...
To continue reading
Request your trial
-
US FOR USE OF LAS VEGAS BLDG. MATER. INC. v. Bernadot
...seeks a total discharge, otherwise any such offer accepted merely constitutes a partial payment. Pincus-Litman Co., Inc. v. Canon U.S.A., Inc., 98 A.D.2d 681, 469 N.Y.S.2d 756 (1st Dep't 1983); Scantlin v. Superior Homes, Inc., 6 Kan. App.2d 144, 627 P.2d 825 It is generally held that the c......
-
Saladino v. Stewart & Stevenson Servs. Inc.
...v. Kennedy, 267 A.D.2d 587, 699 N.Y.S.2d 214 (3d Dept. 1999); Pincus-Litman Co., Inc. v. Canon USA, Inc., 98 A.D.2d ' 681,469 N.Y.S.2d 756 (1st Dept. 1983)). The Court notes that none of the parties hereto have submitted opposition to, or raised any objection to, plaintiff's contention that......
-
West Seventy-Ninth Street Associates v. Lemi, Inc.
...notion. Moreover, the legends on the face of the checks were placed there for Respondent's convenience. Pincus-Litman Co. v. Canon U.S.A., 98 A.D.2d 681, 469 N.Y.S.2d 756 (1st Dept.1983). They were not endorsements let alone restrictive endorsements. Section 3-202(1) of the New York Uniform......
-
In re Smolka
...appear on a portion of the checks that “is usually devoted to the bookkeeping records of the payor” (Pincus–Litman Co. v. Canon U.S.A., 98 A.D.2d 681, 681, 469 N.Y.S.2d 756 ; see C.I.T. Corp. v. M & T Trust Co., 241 App.Div. 595, 596, 272 N.Y.S. 591 ), and the checks at issue were timely su......