Martene N. Edwards, Respondent,
Nemet Motors, LLC, Appellant.
D'Ambrosio & D'Ambrosio, P.C. (James J.
D'Ambrosio of counsel), for appellant.
Martene N. Edwards, respondent pro se (no brief filed).
PRESENT: MICHAEL L. PESCE, P.J., MICHELLE WESTON, BERNICE D.
from a judgment of the Civil Court of the City of New York,
Queens County (Terrence C. O'Connor, J.), entered August
18, 2016. The judgment, after a nonjury trial, awarded
plaintiff the principal sum of $2, 898.
that the judgment is affirmed, without costs.
small claims action, plaintiff seeks to recover the principal
sum of $3, 250, based on defendant's failure to provide a
refund to her for insurance items which she had purchased
through defendant but had then cancelled. At a nonjury trial,
plaintiff testified that, in connection with her purchase of
a new car from defendant, defendant had sold her several
items, which she had subsequently realized she did not need
and sought to cancel. Defendant consented to plaintiff's
cancellation of a security system which had not yet been
installed and a service package, but informed plaintiff that
two insurance policies, for which she had paid $1, 499 and
$1, 399 respectively, were nonrefundable and noncancellable.
Defendant issued a refund check to plaintiff for the security
system and the service package. Above plaintiff's
endorsement, the check was marked "in full and final
settlement of all claims."
contacted the issuers of the two insurance policies, which
agreed to cancel them and to refund their cost. It was
undisputed that the issuers had refunded the cost of the
policies to defendant. Defendant, however, refused to pay the
refunds to plaintiff, asserting that plaintiff's
endorsement of defendant's check had constituted an
accord and satisfaction. Following the trial, the Civil Court
awarded judgment to plaintiff in the principal sum of $2,
small claims action, our review is limited to a determination
of whether "substantial justice has... been done between
the parties according to the rules and principles of
substantive law" (CCA 1807; see CCA 1804;
Ross v Friedman, 269 A.D.2d 584');">269 A.D.2d 584 ; Williams
v Roper, 269 A.D.2d 125');">269 A.D.2d 125 ). Furthermore, the
determination of a trier of fact as to issues of credibility
is given substantial deference, as a trial court's
opportunity to observe and evaluate the testimony and
demeanor of the witnesses affords it a better perspective
from which to assess their credibility (see Vizzari v
State of New York, 184 A.D.2d 564');">184 A.D.2d 564 ; Kincade v
Kincade, 178 A.D.2d 510, 511 ). This deference
applies with greater force to judgments rendered in the Small
Claims Part of the court (see Williams v Roper, 269
A.D.2d at 126).
the acceptance of a check in full settlement of a disputed
claim may operate as an accord and satisfaction discharging
the claim, on the theory that the parties have, thereby, made
a new contract discharging their obligations under the
original contract, an accord and satisfaction is
"enforceable... only when the person receiving the check
has been clearly informed that acceptance of the amount
offered will settle or discharge a legitimately disputed
unliquidated claim" (Merrill Lynch Realty/Carll
Burr, Inc. v Skinner, 63 N.Y.2d 590, 596 ; see
also Narendra v Thieriot, 41 A.D.3d 442, 443 [2007). The
party asserting the affirmative defense of accord and
satisfaction bears the burden of establishing "that
there was a disputed or unliquidated claim between the
parties which they mutually resolved through a new contract
discharging all or part of their obligations under the
original contract" (Profex, Inc. v Town of
Fishkill, 65 A.D.3d 678, 678 ). "It is well
settled that 'acceptance of part payment of a liquidated
claim is no defense to an action for the balance, even where
part payment is in the form of a check reciting that it is in
full settlement, in the absence of a signed agreement or some
consideration which is new or collateral to the partial
payment' " (Nwulu-Njoku v Azuaru, 46
Misc.3d 135 [A], 2014 NY Slip Op 51878[U], *1 [App Term, 2d
Dept, 2d, 11th & 13th Jud Dists 2014], quoting 19A NY Jur
2d, Compromise, Accord, and Release § 18; see also
Simone v Beach Realty Corp., 38 Misc.3d 147[A], 2013 NY
Slip Op 50335[U] [App Term, 2d Dept, 9th & 10th Jud Dists
2013]). In the present case, defendant failed to establish
that it had clearly informed plaintiff that her acceptance of
the refund check for the security system and the service
package would extinguish her claim to a refund for the
insurance policies, nor did it demonstrate the existence of a
signed agreement apart from the endorsed check or
consideration which was new or collateral to the partial
defendant contends that, under the parties' contract, the
insurance policies were noncancellable, this does not obviate
the fact that plaintiff did in fact cancel them, and that
their issuers refunded the policies' purchase prices to
defendant. Were defendant permitted to retain those refunds,
it would be unjustly enriched at plaintiff's expense.
extent that defendant argues that the Civil Court applied an
improper evidentiary standard in this small claims action,
since defendant failed to identify any prejudice which
resulted from such alleged error, we conclude that the error,
if any, was harmless (see CPLR 2002; Parris v
New York City Tr. Auth., 140 A.D.3d 938, 940 ).
therefore conclude that the judgment in favor of plaintiff
rendered substantial justice between the parties according to
the rules and principles of substantive law (CCA 1807;
see CCA 1804; Ross v Friedman, 269 A.D.2d
584; Williams v Roper, 269 A.D.2d at 126).
the judgment is affirmed.
P.J., WESTON and ...