Cerra v. Syracuse University

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in denying that part of plaintiffs’ cross motion seeking dismissal of the affirmative defense of accord and satisfaction (see, CPLR 3211 [b]). The documentary evidence submitted by plaintiffs establishes that the settlement of each action was conditioned on the acceptance by the respective plaintiff of the amount offered by defendant. Because each of the six plaintiffs at issue rejected the offered amount, there was no agreement and thus no “accord” (cf., Moweta v Citywide Home Improvements, 267 AD2d 438). We therefore modify the order accordingly. Contrary to plaintiffs’ contention, the court did not improvidently exercise its discretion in granting in part defendant’s motion to sever by ordering separate trials on the issue of damages (cf., J & A Vending v J.A.M. Vending, 268 AD2d 504). The record establishes that the number and differing nature and degree of the damages claims would likely create juror confusion if the actions were tried jointly. (Appeal from Order of Supreme Court, Onondaga County, Murphy, J. — Dismiss Pleading.) Present — Pigott, Jr., P. J., Pine, Hurlbutt, Scudder and Kehoe, JJ.