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Winters Bros. Recycling Corp v. Bill Tabert Doing Business As Super Sudz

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


February 16, 2011

WINTERS BROS. RECYCLING CORP., APPELLANT,
v.
BILL TABERT DOING BUSINESS AS SUPER SUDZ, RESPONDENT.

Appeal from a judgment of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered April 23, 2009.

Winters Bros. Recycling Corp. v Tabert

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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 16, 2011

PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ

The judgment, insofar as appealed from, after a non-jury trial, dismissed plaintiff's cause of action.

ORDERED that the judgment, insofar as appealed from, is affirmed, without costs.

Plaintiff commenced this commercial claims action to recover the sum of $5,000 for defendant's alleged breach of a waste carting contract dated August 14, 2007. After a mandatory arbitration hearing (see Rules of the Chief Judge [22 NYCRR] part 28) on January 20, 2009, the arbitrator found that defendant had breached the carting contract but that plaintiff had failed to offer adequate proof of its damages and mitigation efforts, and issued an award in favor of plaintiff in the amount of $500. On February 9, 2009, plaintiff made a demand for a trial de novo.

At the trial de novo on March 26, 2009, defendant's president testified that he had sent plaintiff a letter enclosing a check for $500 pursuant to the arbitration award. Defendant's president further stated that his bank had verified that plaintiff had cashed the check on March 16, 2009. Plaintiff's attorney did not dispute that plaintiff had accepted the $500; however, he contended that he had no prior awareness of defendant's tender of the check, which he maintained should have been mailed to him, since he was the attorney of record. On April 23, 2009, a judgment was entered, which, in relevant part, dismissed plaintiff's cause of action on the ground that the carting contract was unconscionable.

Contrary to plaintiff's attorney's contention, defendant was permitted to pay plaintiff directly; there was no requirement that payment of the arbitration award be made to him as the attorney of record. We find that in cashing the check, which was tendered with correspondence indicating that payment was being made in satisfaction of the arbitration award, plaintiff accepted that its claim was discharged and thereby abandoned its right to seek a trial de novo.

Accordingly, the judgment, insofar as appealed from, is affirmed, albeit on other grounds.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur. Decision Date: February 16, 2011

20110216

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