NEW YORK SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
April 25, 2012
MOHAMED H. HASSAN, APPELLANT,
ROBERT G. CHOBOR, RESPONDENT.
Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered October 14, 2010.
Hassan v Chobor
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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 25, 2012
PRESENT: PESCE, P.J., WESTON and RIOS, JJ
The judgment, after a non-jury trial, dismissed the action.
ORDERED that the judgment is affirmed, without costs.
Plaintiff commenced this small claims action seeking, insofar as relevant to this appeal, to recover for property damage to his automobile caused by defendant's negligence. At a non-jury trial, liability was conceded and the sole issue was whether plaintiff was entitled to more money than the $1,090 check he had received, and cashed without protest, from defendant's insurer. Plaintiff testified that an adjuster for defendant's insurer had advised him that the check for $1,090 check was "just the beginning" and additional money would be available if he brought his vehicle back. The adjuster testified that he had explained to plaintiff that supplemental payments would beprovided if plaintiff brought his vehicle to a repair shop and further damage, beyond that detailed on his estimate, was discovered. He also stated that he had never been contacted about any additional damage being discovered. The Civil Court determined that by cashing the check, without reservation of his rights, plaintiff was precluded from recovering any additional payment.
Plaintiff's acceptance and cashing of the check, without protest (see
UCC 1-207) and with full knowledge of the material facts, constituted
an accord and satisfaction of all items of damage listed on the
estimate (see generally Horn Waterproofing Corp. v Bushwick Iron & Steel Co., 66 NY2d 321, 324-325 ;
Rubin v Medynski, 195 Misc 2d 869 [App Term, 9th & 10th Jud Dists 2003]; Lipton v Dubro
Foods Inc., 2001 NY Slip Op 40587[U] [App Term, 2d
& 11th Jud Dists 2001]). As plaintiff failed to establish that his vehicle sustained any damage beyond that listed on the
estimate, the Civil Court's determination dismissing the action rendered substantial justice between the parties (see CCA 1807).
Accordingly, the judgment is affirmed. Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 25, 2012
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