Opinion
July 9, 1974
Order, Supreme Court, Bronx County, entered on May 24, 1974, to the extent appealed from, unanimously reversed, on the law, and plaintiff's motion for partial summary judgment in the sum of $333,116.06, plus interest, granted. Appellant shall recover of respondent $40 costs and disbursements of this appeal. It is uncontested that plaintiff sold to defendant some 39,000 barrels of oil. The only dispute is as to the unit price. Plaintiff claims $506,348.80 is due, while defendant contends it only owes $333,116.06. Defendant sent plaintiff a check in the lesser amount "covering payment * * * as per our agreement". Plaintiff returned the check, commenced the instant action to recover the full amount it deems itself entitled to and moved for partial summary judgment for the amount defendant concedes to be due. Special Term granted plaintiff's motion, but declined to grant it interest on such amount because plaintiff failed to establish its right "to recover, as a matter of law, any sum in excess of the amount tendered." We cannot affirm such holding because, in our view, the alleged tender in this case was conditional, and, therefore, insufficient. The clear import of defendant's transmittal letter was that the proffered check was in full payment of the disputed debt. "It is well established that in order to stop the running of interest on an undisputed obligation a tender of payment must be unconditional". ( Matter of Jeffrey Towers v. Straus, 31 A.D.2d 319, 325, affd. 26 N.Y.2d 812.) Additionally, we find no evidentiary support in the record before us for defendant's bald, conclusory assertion that it kept its tender good at all times. (Cf. CPLR 3219.)
Concur — Kupferman, J.P., Murphy, Steuer and Tilzer, JJ.