ROSENTHAL v. QUADRIGA ART, INC.8170, 116974/06.

2013 NY Slip Op 02475

GLORIA ROSENTHAL, ETC., Plaintiff-Respondent-Appellant,
v.
QUADRIGA ART, INC., Defendant-Appellant-Respondent.

Appellate Division of the Supreme Court of New York, First Department.
Decided April 11, 2013.
Graubard Miller, New York (Edward H. Pomeranz of counsel), for appellant-respondent.
Marin Goodman L.L.P., Harrison (Dean L. Jarmel of counsel), for respondent-appellant.
Before: Andrias, J.P., Sweeny, Moskowitz, Manzanet-Daniels, JJ.

The motion court properly declined to grant defendant's motion for summary judgment regarding the amount of commissions due to the defendant's estate. The record shows that decedent occasionally was paid commissions on orders that he did not personally write up or service, including some accounts that he brought to defendant but were subsequently converted to "house accounts." Moreover, there are factual and credibility issues regarding whether defendant always paid decedent commissions of 10 percent, as well as whether defendant "gifted" certain amounts to decedent in various years, including some years for which defendant asserts accord and satisfaction as a defense to the Estate's claims. Resolution of these issues is more appropriate for the finder of fact (see Martin v Citibank, N.A., 64 A.D.3d 477, 478 [1st Dept 2009]).

Contrary to the motion court's finding, the estate's claim for commissions for the years 2000, 2001, and 2003 is not barred by the principle of accord and satisfaction. Accord and satisfaction requires the existence of an actual dispute, manifested by a specific demand by the alleged creditor and an express, good-faith disagreement with that demand by the debtor (see Matter of Leckie, 54 A.D.2d 205, 214-15 [4th Dept 1976]). Here, as noted, there are a number of factual disputes as to which accounts would form the basis of decedent's commissions, the amount due on those accounts and whether the final yearly tally contained amounts constituting "gifts." Indeed, the motion court properly found that there was no evidence of an accord and satisfaction for commissions payable during the year 2002 based upon the conflicting claims for that year. Although the checks issued by defendant to decedent for commissions bore the notation "settlement," the doctrine requires a "clear manifestation of intent by the parties that the payment was made, and accepted, in full satisfaction of the claim" (Nationwide Registry & Sec. v B & R Consultants, 4 A.D.3d 298, 300 [1st Dept 2004]; Manley v Pandick Press, 72 A.D.2d 452, 454 [1st Dept 1980], appeal dismissed 49 N.Y.2d 981 [1980]). For the purposes of a summary judgment motion, such a finding is precluded by the conflicting factual claims on this record.

We have considered the parties' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Comment

1000 Characters Remaining

Leagle.com reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.

User Comments

Listed below are the cases that are cited in the Featured Case. Click the citation to see the full text of the cited case. Citations are also linked in the body of the Featured Case.

Cited Cases

  • No Cases Found
Listed below are those cases in which the Featured Case is cited. Click on the case name to see the full text of the citing case.

Citing Cases