Plaintiff did not do so contemporaneously or prior to cashing the check. The facts here are analogous to Sarbin v. Southwest Media Corp. (179 A.D.2d 567 [1st Dept 1992] ). In Sarbin plaintiffs claimed that defendants owed them $125,000.
*854 The motion, which was based on the theory of accord and satisfaction, was properly denied since defendant failed to show that there was a “clear manifestation of intent by the parties that the payment was made, and accepted, in full satisfaction of the claim” ( Nationwide Registry & Sec. v. B & R Consultants, 4 A.D.3d 298, 300, 773 N.Y.S.2d 341 [2004]; see Manley v. Pandick Press, 72 A.D.2d 452, 424 N.Y.S.2d 902 [1980], appeal dismissed 49 N.Y.2d 981, 428 N.Y.S.2d 950, 406 N.E.2d 805 [1980] ). Here, there was nothing on the refund check or in the letter enclosing the check that indicated that the check was tendered only on the condition that it was in full payment of the disputed claim ( see Nadel v. Manhattan Life Ins. Co., 211 A.D.2d 900, 902, 621 N.Y.S.2d 180 [1995]; compare Sarbin v. Southwest Media Corp., 179 A.D.2d 567, 578 N.Y.S.2d 571 [1992] ). TOM, J.P., SAXE, ACOSTA, DeGRASSE, ROMÁN, JJ., concur.
Thus, Disney could not have known when it accepted the fee payments that EchoStar was conditioning such acceptance on a relinquishment of any future interest claim. In the cases cited by EchoStar, Sarbin v Southwest Media Corp. ( 179 AD2d 567), Hondares v TSS-Seedman's Stores ( 151 AD2d 411) and Hirsch v Berger Import Mfg. Corp. ( 67 AD2d 30), there was a bona fide, ongoing disagreement between the parties, each of which was aware of the other's position. In this case, EchoStar's senior vice-president testified that, after Disney demanded interest in January and February 2006, "[w]e never saw another word on this [interest issue] again."
Plaintiff did not do so contemporaneously or prior to cashing the check. The facts here are analogous to Sarbin v Southwest Media Corp. (179 AD2d 567 [1st Dept 1992]). In Sarbin plaintiffs claimed that defendants owed them $125,000.
Plaintiff did not do so contemporaneously or prior to cashing the check. The facts here are analogous to Sarbin v Southwest Media Corp. (179 AD2d 567 [1st Dept 1992]). In Sarbin plaintiffs claimed that defendants owed them $125,000.
Defendant contends that if plaintiff wanted to preserve its rights for additional payments, it needed to do so either before or contemporaneously with accepting payment in order to avoid accord and satisfaction. Sarbin v Southwest Media Corp., 179 AD2d 567, 572 (1st Dep't 1992). Plaintiff argues that the circumstances did not operate as an accord and satisfaction.