| Progressive Northeastern Ins. Co. v North State Autobahn,Inc. |
| 2010 NY Slip Op 01779 [71 AD3d 657] |
| March 2, 2010 |
| Appellate Division, Second Department |
| Progressive Northeastern Insurance Company,Appellant, v North State Autobahn, Inc., Doing Business as North State Custom Auto,et al., Respondents. |
—[*1] Medina, Torrey, Santangelo, Mamo & Camacho, P.C., Sleepy Hollow, N.Y. (Richard PaulStone of counsel), for respondents.
In an action, inter alia, to recover damages for fraud, the plaintiff appeals from a judgment ofthe Supreme Court, Westchester County (Smith, J.), dated January 12, 2009, which, upon thegranting of the defendants' motion pursuant to CPLR 4401 to dismiss the complaint, made at theclose of the plaintiff's evidence, is in favor of the defendants and against it, dismissing thecomplaint.
Ordered that the judgment is reversed, on the law, with costs, the motion is denied, thecomplaint is reinstated, and a new trial is granted.
The defendants established their prima facie entitlement to judgment as a matter of law (see Sitar v Sitar, 61 AD3d 739,741 [2009]; cf. Smith v AmeriquestMtge. Co., 60 AD3d 1037, 1039 [2009]). In opposition, however, the plaintiffdemonstrated that there were triable issues of fact, inter alia, regarding whether the defendantshad charged for repairs not performed, for parts not installed, for unnecessary repairs, and forexcess labor charges (see Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187,194 [1968]). Accordingly, the Supreme Court correctly denied that branch of the defendants'motion which was for summary judgment dismissing the complaint.
The Supreme Court did not improvidently exercise its discretion in denying that branch ofthe defendants' motion which was, in the alternative, to direct that this action be tried jointly withan action entitled North State Autobahn v Progressive Ins. Group, pending in theSupreme Court, Westchester County, under index No. 02761/07. Inasmuch as the two actions didnot involve common questions of law or fact (see CPLR 602 [a]), a joint trial was notwarranted (see Beerman vMorhaim, 17 AD3d 302, 303 [2005]).
At the close of the plaintiff's case, which arises out of the defendants' repair of a motorvehicle owned by the plaintiff's insured, the defendants moved for judgment as a matter of lawon the ground that the plaintiff had failed to establish a prima facie case (see CPLR4401). The Supreme Court granted the motion on a ground not argued by the defendants,namely, that the plaintiff's payment of the full amount of the final bill for the repair of the vehiclewithout asserting that the payment was, in some [*2]manner,"under protest," barred the plaintiff's claims under the doctrine of accord and satisfaction (seeMerrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 NY2d 590, 596 [1984]; UCC 1-207). Ingranting the motion on that ground, the Supreme Court erred in two respects. First, accord andsatisfaction is an affirmative defense which must be pleaded and proved (see CPLR 3018[b]; Conboy, McKay, Bachman & Kendall v Armstrong, 110 AD2d 1042 [1985]; see also Arias-Paulino v Academy BusTours, Inc., 48 AD3d 350 [2008]; Dec v Auburn Enlarged School Dist., 249AD2d 907, 908 [1998]). The defendants did not plead accord and satisfaction as an affirmativedefense, and it was improper for the Supreme Court to raise it sua sponte (see Trustco BankN.Y. v Cohn, 215 AD2d 840, 841 [1995]; cf. Rienzi v Rienzi, 23 AD3d 450 [2005]). Second, the doctrine ofaccord and satisfaction is not applicable because it contemplates full knowledge of the facts onthe part of both parties who, in effect, enter into a new contract to expeditiously settle a contractdispute (see Horn Waterproofing Corp. v Bushwick Iron & Steel Co., 66 NY2d 321, 325[1985]). In this action, inter alia, to recover damages for fraud, the gravamen of the plaintiff'sclaim is that it was without such knowledge because of the defendants' alleged misrepresentationof material facts. Thus, a new trial is warranted.
We note that, upon retrial, the plaintiff should not be limited to damages in the sum of$2,808.65, the amount of the allegedly fraudulent charges contained in the final bill of thedefendant North State Autobahn, Inc., doing business as North State Custom Auto, but rather tothe amount sought in the complaint.
The parties' remaining contentions are without merit. Fisher, J.P., Florio, Belen and Austin,JJ., concur.