Opinion
No. 03 Civ. 8447 (DLC).
August 20, 2004
Roy A. McKenzie New York, New York, for the Plaintiff.
Peter N. Wang Robert A. Scher Friedman, Wang, Bleiberg, P.C. New York, New York, for the Defendants.
MEMORANDUM OPINION AND ORDER
The plaintiff moves for summary judgment in this breach of contract action, and the defendants cross move to strike papers submitted by the plaintiff in support of her motion. Familiarity with the facts of this case as stated in Draskicevic v. Entersport Management, Inc., No. 03 Civ. 8447 (DLC), 2004 WL 1575393 (S.D.N.Y. July 15, 2004), is assumed. Summary judgment may not be granted unless the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P.
This action is essentially a dispute as to whether the plaintiff is entitled to a share of any fees received by the defendants after September 2000, when the defendants assert that they were fired by Mirsad Turkcan ("Turkcan"). The defendants maintain that they renewed their representation of Turkcan after that time under circumstances that give the plaintiff no right to share in their fees.
Plaintiff's motion for summary judgment fails to comply with S.D.N.Y. Local Civil Rule 56.1. In any event, taking the evidence in the light most favorable to the defendants, genuine issues for trial remain in this action, including: (1) whether the January 7, 1998 contract between the parties was terminated when Turkcan fired the defendants in September 2000, and (2) whether Turkcan did fire the defendants in September 2000.
The parties also contest whether the plaintiff's acceptance of a $5,000 wire transfer in May 2001 represents an accord and satisfaction of this dispute. To be valid under New York law, an accord and satisfaction needs either new consideration or it must be in writing.
An agreement . . . to discharge in whole or in part, any contract . . . shall not be invalid because of the absence of consideration, provided that the agreement . . . shall be in writing and signed by the party against whom it is sought to enforce the . . . discharge, or by his agent.
N.Y. General Obligations Law § 5-1103 (McKinney's 2004). An essential element of accord and satisfaction is a "clear manifestation of intent by the debtor in tendering less than full payment of a disputed unliquidated debt that the payment has been sent in full satisfaction of the disputed claim." General Systems Corp. v. Newsnet, Inc., No. 84 Civ. 1868 (RLC), 1988 WL 34816, at *3 (S.D.N.Y. Apr. 17, 1988). Indeed, "a defendant's expression must be so clear and unequivocal" that New York courts have denied summary judgment even though the defendant's check stated "`payment in full' on the front." Springwell Corp. v. Falcon Drilling Co., Inc., 16 F. Supp. 2d 300, 318 (S.D.N.Y. 1998) (citing C. Itoh Co. v. F.W. Honerkamp Co., Inc., 470 N.Y.S.2d 593, 594-95 (1st Dep't 1984)).
Here, payment to the plaintiff was made by wire transfer; there is no documentary evidence of the parties' intent to effect a full settlement of the disputed claim. The record presented on this motion does not establish the defense of accord and satisfaction.
Conclusion
The plaintiff's motion for summary judgment is denied. The defendants' motion to strike is denied as moot.
SO ORDERED: