Manley v. Pandick Press, Inc.

OPINION OF THE COURT Sandler, J. Plaintiff Manley, employed for many years by the defendant Pandick Press as a printing salesman, sues for damages arising out of the allegedly wrongful termination of his employment. Defendant moved for summary judgment dismissing the first through fourth and eighth causes of action, and further moved to dismiss the fourth through seventh causes of action for failure to state a cause of action. Special Term denied the motions, finding that they were premature, with leave to defendant to renew its motions upon completion of disclosure. (CPLR 3212, subd [f].) The complaint sets forth eight causes of action. Four allege violation by the defendant of varying contractual obligations [454] (first through third and eighth); three are based on different theories of tort liability (fifth, sixth and seventh), and one alleges a violation of section 296 (subd 1, par [a]) of the Executive Law prohibiting employment discrimination based on age. In the fourth cause of action, asserting age discrimination, plaintiff has coupled with the allegation that he was dismissed solely because of age the inconsistent claim that his discharge was intended to deprive him of salary and commissions. These additional allegations, properly included in other causes of action, have no place in this cause of action, which is otherwise legally sufficient. Accordingly, the fourth cause of action is dismissed with leave to replead. As to the fifth and sixth causes of action claiming intentional and prima facie torts, the allegations present no exception to the general rule that a breach of contract does not by itself give rise to a tort action. (Wegman v Dairylea Coop., 50 AD2d 108, 112.) The seventh cause of action, asserting that defendant corporation tortiously interfered with its own contract, quite clearly does not state a legally sufficient cause of action and must also be dismissed. (See Greyhound Corp. v Commercial Cas. Ins. Co., 259 App Div 317, 320.) The principal issue raised on this appeal is presented by defendant’s argument that a check issued to and cashed by plaintiff constituted as a matter of law an accord and satisfaction requiring dismissal of the contract causes of action. We do not agree. An essential component of an accord and satisfaction is a clear manifestation of intent by the debtor tendering less than full payment of a disputed unliquidated debt, that the payment has been sent in full satisfaction of the disputed claim. (Hudson v Yonkers Fruit Co., 258 NY 168, 174; Hirsch v Berger Import & Mfg. Corp., 67 AD2d 30, 34; Consolidated Edison Co. of N. Y. v Arroll, 66 Misc 2d 816, 818.) The required clarity, particularly where summary judgment is to be granted dismissing the major causes of action in the complaint, is not present in the exchange of correspondence between plaintiff Manley and defendant Pandick. Plaintiff was fired by defendant on June 9, 1978, nine days into Pandick’s fiscal year 1979. On October 20, 1978, after sending plaintiff interim statements and checks for salary and earned commissions, defendant advised plaintiff that "no Com [455] mission will be paid on the Toledo Edison work, nor any other jobs billed subsequent to May 31, 1978, due to losses incurred by Pandick as a result of price adjustments in excess of $43,000, issued on your jobs in the quarter ended August 31, 1978.” Plaintiff answered by letter on November 9, 1978, expressing his understanding that he was entitled to receive commissions on unbilled work completed or in progress as of June 9, that his commissions were payable unless there were "abnormal markdowns” or "substantial adjustments”, and requesting further information regarding the price adjustments of over $43,000 on the Toledo Edison and the other June 9 unbilled work, upon which defendant was refusing to pay commissions. Plaintiff concluded by stating: "I stand ready to accept an equitable settlement of these matters.” On November 17, 1979, defendant sent plaintiff a breakdown of price adjustments totaling $43,309 during the quarter ended August 31, 1978, including the disputed Toledo Edison and other jobs (Merrill Lynch and CIT Financial) billed subsequent to May 31, 1978, which had been the subject of the previous correspondence. On January 23, 1979, defendant sent plaintiff a check for $1,056 "representing your commission on Hopper Car invoice #4-001 and Nomura invoice #3-032, both of which were billed in fiscal 1978,” i.e., not within the disputed period of June through August, 1978. Defendant’s letter ended: "The attached check represents final settlement of all compensation due to you from your term of employment at Pandick, and no further statements will be forthcoming from Pandick.” The foregoing exchange of correspondence does not support a finding of accord and satisfaction as a matter of law. First, the tendered $1,056 check represented commissions on work which was not disputed by the parties; thus plaintiff’s negotiation of that check, representing only commissions undisputedly earned, cannot constitute an accord and satisfaction of the disputed claim. "What was paid had no connection with what was disputed and reserved. 'The payment of an admitted liability is not a payment of or a consideration for an alleged accord and satisfaction of another and independent alleged liability’ ” (Hudson v Yonkers Fruit Co., supra, at p 173). Second, "the debtor must make it clear that the check which he sent is offered only on condition that it is taken in [456] full payment” of the disputed claim. (15 Williston, Contracts [3d ed], § 1856, p 555; Carlton Credit Corp. v Atlantic Refining Co., 12 AD2d 613, affd 10 NY2d 723.) Indeed, it has been authoritatively stated: "The imposition of an accord and satisfaction on the creditor against his will can be justified only where his taking the check would be tortious except on the assumption of a taking in full satisfaction” (Williston, id., p 558; Hudson v Yonkers Fruit Co., supra, at p 174). The correspondence in the instant case demonstrates that the $1,056 check only satisfied defendant’s debt for commissions owed to plaintiff on the undisputed Hopper Car and Nomura invoices billed in fiscal 1978. Plaintiff’s negotiation of this check, representing undisputed commissions earned by him, cannot possibly be deemed tortious. Finally, the gross disparity between the $1,056 check and the substantially higher amounts claimed militates against a finding of accord and satisfaction. To the extent there may be any support in this record for a finding of accord and satisfaction in the absence of unequivocal language expressive of intent, the issue of the intention of the parties is a matter for the trier of facts, be it court or jury (Goldbard v Empire State Mut. Life Ins. Co., 5 AD2d 230, 234; Galusha v Schur, 21 AD2d 32, 34). Accordingly, the order of the Supreme Court, New York County (Stecher, J.), entered September 5, 1979, should be modified, on the law, by dismissing the fourth, fifth, sixth and seventh causes of action, with leave to replead the fourth cause within 20 days after service of a copy of the order entered hereon with notice of entry, and, as modified, the order should be affirmed, without costs and without disbursements.