Opinion
March 23, 1995
Appeal from the Supreme Court, New York County (Herman Cahn, J.).
Summary judgment was properly denied on the ground that issues of fact continue to exist whether the parties intended the alleged oral agreement of 1986 to be an accord and satisfaction, and, if so, its intended scope (see, 82 N.Y.2d 375, 384-385).
The Court of Appeals has specifically outlined the factual issue and in fact said that an agreement to settle a dispute can be enforced even though the forfeiture clause was itself unenforceable. Defendant's claim that the alleged agreement could also be viewed as a waiver by plaintiff of a contractual right or a compromise and settlement also raises issues of fact precluding summary judgment even though such theories were not specifically pleaded (Rizzi v. Sussman, 9 A.D.2d 961).
Concur — Rosenberger, J.P., Rubin, Ross, Nardelli and Williams, JJ.