COHEN MARKETING INTERNATIONAL INC v. NATIONAL EQUITY CORP (1999)

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered November 9, 1998, which, in an action by a borrower against its factor to recover a prepayment penalty, incurred because defendant allegedly forced plaintiff to terminate the loan early, denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

While the payoff amount set forth in the termination agreement, which plaintiff signed, establishes the aggregate amount defendant loaned to plaintiff less the aggregate amount defendant collected on plaintiff's account receivables, and in that sense could be characterized as an account stated (see, Shea & Gould v. Burr, 194 A.D.2d 369, 370, 598 N.Y.S.2d 261), such agreement is not a complete defense to the action.   The agreement, which is in the form of a letter addressed to plaintiff's new factor and terminates defendant's right, title and interest in plaintiff's assets, contains no indication that plaintiff was relinquishing the claim it now asserts against defendant arising out of the allegedly coerced termination of the loan.   We note that defendant's motion papers did not address plaintiff's allegations that it was “forced” to enter into the termination agreement and that the payoff amount includes a prepayment penalty.

MEMORANDUM DECISION.