PINNACLE MANAGING CO LLC v. SLADE INDUSTRIES INC (2023)

Order, Supreme Court, New York County (Debra A. James, J.), entered on or about December 13, 2022, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant is not entitled to summary judgment dismissing the complaint under the voluntary payment doctrine because the record presents issues of fact as to whether plaintiff rendered payment without full knowledge of the facts (see Dillon v. U–A Columbia Cablevision of Westchester, Inc., 100 N.Y.2d 525, 526, 760 N.Y.S.2d 726, 790 N.E.2d 1155 [2003];  New York Eye & Ear Infirmary v. Bowne, 200 A.D.3d 467, 160 N.Y.S.3d 4 [1st Dept. 2021]).  Plaintiff presented evidence showing that it paid defendant before plaintiff obtained information indicating that defendant had breached its contractual obligations, thus raising a triable issue of fact regarding whether plaintiff had full knowledge of the facts (see Dubrow v. Herman & Beinin, 171 A.D.3d 672, 673, 99 N.Y.S.3d 271 [1st Dept. 2019];  Rite Aid of N.Y., Inc. v. Chalfonte Realty Corp., 105 A.D.3d 470, 963 N.Y.S.2d 178 [1st Dept. 2013]).  Similarly, defendant did not establish that plaintiff's claim was barred by the doctrine of accord and satisfaction, because the record lacked unequivocal language expressing its intent that plaintiff paid in satisfaction of an ongoing dispute between the parties when it paid the invoices supplied by defendant in full (see Rosenthal v. Quadriga Art, Inc., 105 A.D.3d 507, 507–508, 963 N.Y.S.2d 192 [1st Dept. 2013]).  The record does not show any genuine controversy concerning the amount due, and defendant did not produce any records or documents evincing an express agreement between the parties that plaintiff's payment constituted a settlement of any claims (see EchoStar Satellite L.L.C. v. ESPN, Inc., 79 A.D.3d 614, 619, 914 N.Y.S.2d 35 [1st Dept. 2010]).

The court correctly concluded that triable issues of fact were raised by the lay witness affidavit and testimony presented by plaintiff, based on the witness's personal knowledge and supported by documentary evidence, which stated that defendant had breached its contractual obligations by failing to perform routine, monthly maintenance on the elevators at issue, causing damage to the elevators that necessitated repairs (see Zapin, Endlich & Lombardo, Inc. v. CBS Coverage Group, Inc., 26 A.D.3d 231, 232, 809 N.Y.S.2d 64 [1st Dept. 2006];  see also CPLR 3212[b]).  An expert affidavit was not required (see Boye v. Rubin & Bailin, LLP, 152 A.D.3d 1, 8–9, 56 N.Y.S.3d 57 [1st Dept. 2017];  Colon v. Rent–A–Center, Inc., 276 A.D.2d 58, 61, 716 N.Y.S.2d 7 [1st Dept. 2000]).

We perceive no basis for imposing sanctions against defendant (22 NYCRR 130–1.1[a]).