Opinion
January 28, 1992
Appeal from the Supreme Court, New York County (Irma Santaella, J.).
In a dispute where plaintiffs claim that defendants owe them $125,000, plaintiffs accepted and deposited a check for $30,000, explicitly tendered by defendants in full settlement of all claims, without any restrictive endorsement or other contemporaneous or prior reservation of rights. Not until nearly a week later did plaintiffs purport to reserve their rights by letter. While a letter can be sufficient to reserve rights under UCC 1-207 (Ayer v. Sky Club, 70 A.D.2d 863, appeal dismissed 48 N.Y.2d 705), we are unaware of any case that has ever expressly interpreted that provision to allow a reservation of rights by letter several days after a settlement check had already been accepted without any contemporaneous reservation of rights. While certain sections in article 2 of the Uniform Commercial Code do allow a protest to be made within a reasonable time after delivery, similar language is not employed in UCC 1-207. The deliberate omission of words from a statute indicates a specific legislative intent (see, Matter of Blatnicky v. Ciancimino, 1 A.D.2d 383, 388, affd 2 N.Y.2d 943), and we decline to read into UCC 1-207 what the Legislature intended to omit (see, Matter of Prospect v. Cohalan, 109 A.D.2d 210, 218, affd 65 N.Y.2d 867, rearg denied 65 N.Y.2d 1026). Accordingly, we agree with the IAS court that a letter purporting to reserve rights under UCC 1-207 is untimely and ineffective if it does not precede or accompany the unrestricted acceptance of the settlement check.
Concur — Sullivan, J.P., Kupferman, Ross and Kassal, JJ.