Opinion
October 15, 1991
Appeal from the Supreme Court, Suffolk County (Brown, J.).
Ordered that the order is affirmed, with costs.
Contrary to the defendant's contention, the record fails to demonstrate that the plaintiff requested the return of her down payment in settlement of her claim for specific performance of the parties' contract. Moreover, neither the check representing the return of the down payment, nor the letter which accompanied it, expressly stated that the check was offered in settlement of the litigation arising out of the defendant's refusal to deliver the deed to the subject premises. In the absence of a clear intent to alter or modify the original contract terms or settle the dispute concerning them, the plaintiff's acceptance of the check did not operate as an accord and satisfaction (see, Merrill Lynch Realty/Carll Burr, Inc. v. Skinner, 63 N.Y.2d 590). Regardless of whether or not the defendant's refusal to perform the contract was justified, the check was nothing more than a return of the plaintiff's own property, which the defendant had no right to retain after his refusal to convey title (see, Merrill Lynch Realty/Carll Burr, Inc. v. Skinner, supra; Rifelli v Fireside Homes Corp., 152 A.D.2d 629, 630; Lotito v. Mazzeo, 132 A.D.2d 650). Accordingly, the defendant's motion for summary judgment was properly denied. Kunzeman, J.P., Harwood, Eiber and Balletta, JJ., concur.