Opinion
Decided May 8, 1986
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Robert C. Williams, J.
Donald D. De Angelis for appellant.
Linda T. Taverni for respondent.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed, with costs, and summary judgment granted to defendant for the reasons stated in the dissenting memorandum by Justice Howard A. Levine at the Appellate Division ( 115 A.D.2d 819). We add that here, unlike the situation in Merrill Lynch Realty/Carll Burr, Inc. v Skinner ( 63 N.Y.2d 590, 596), the letter accompanying defendant's check in response to plaintiff's attorney's letter offering to "waive the default" made clear by its insistence that the check be held in escrow pending a receipt of a stipulation of discontinuance that "the check was offered in settlement of any outstanding dispute arising out of the [lease]". By thereafter cashing the check and filing the stipulation, plaintiff entered into an accord and satisfaction. The certified question is answered in the affirmative.
Concur: Chief Judge WACHTLER and Judges MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR.