| Profex, Inc. v Town of Fishkill |
| 2009 NY Slip Op 06320 [65 AD3d 678] |
| August 25, 2009 |
| Appellate Division, Second Department |
| Profex, Inc., Appellant, v Town of Fishkill et al.,Respondents. |
—[*1] Babchik & Young, LLP, White Plains, N.Y. (Jack Babchik and Jordan Sklar of counsel), forrespondent Town of Fishkill. Gogick, Byrne & O'Neill, LLP, New York, N.Y. (Mark McCauley of counsel), forrespondents J. Paul Vosburgh, Architect, P.C., and J. Paul Vosburgh.
In an action to recover damages for breach of contract, the plaintiff appeals, as limited by itsbrief, from so much of an order of the Supreme Court, Dutchess County (Sproat, J.), datedMarch 31, 2008, as granted that branch of the motion of the defendant Town of Fishkill whichwas for summary judgment dismissing the complaint insofar as asserted against it and grantedthat branch of the cross motion of the defendants J. Paul Vosburgh, Architect, P.C., and J. PaulVosburgh which was for summary judgment dismissing the complaint insofar as asserted againstthem.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable tothe defendants appearing separately and filing separate briefs.
"[T]he rule of accord and satisfaction has generally been accepted as a legitimate andexpeditious means of settling contract disputes" (Horn Waterproofing Corp. v Bushwick Iron& Steel Co., 66 NY2d 321, 325 [1985]). The party asserting the affirmative defense ofaccord and satisfaction must establish that there was a disputed or unliquidated claim betweenthe parties which they mutually resolved through a new contract discharging all or part of theirobligations under the original contract (see Merrill Lynch Realty/Carll Burr, Inc. vSkinner, 63 NY2d 590, 596 [1984]; Pothos v Arverne Houses, 269 AD2d 377, 378[2000]; Trans World Grocers v Sultana Crackers, 257 AD2d 616, 617 [1999]). Thedefendants established their respective entitlement to judgment as a matter of law on the basis ofan accord and satisfaction (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851[1985]). In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman vCity of New York, 49 NY2d 557 [1980]). Spolzino, J.P., Santucci, Florio and Lott, JJ.,concur.