CPLR R. 3211(a)(5) the
cause of action may not be maintained because of arbitration and award,
collateral estoppel, discharge in bankruptcy, infancy or other
disability of the moving party, payment, release, res judicata, statute
of limitations, or statute of frauds
Profex, Inc. v Town of Fishkill, 2009 NY Slip Op 06320 (App. Div., 2nd, 2009)
"[T]he rule of accord and satisfaction has generally been accepted as a
legitimate and expeditious means of settling contract disputes" (Horn Waterproofing Corp. v Bushwick Iron & Steel Co.,
66 NY2d 321, 325). The party asserting the affirmative defense of
accord and satisfaction must establish 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 (see Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 NY2d 590, 596; Pothos v Arverne Houses, 269 AD2d 377, 378; Trans World Grocers v Sultana Crackers,
257 AD2d 616, 617). The defendants established their respective
entitlement to judgment as a matter of law on the basis of an accord
and satisfaction (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557).
The bold is mine.
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