Opinion
69314
Decided May 3, 2005.
R. Thomas Rankin, Esq., Jamestown, New York, for the Plaintiff.
Susan Hassinger, Esq., Buffalo, New York, for the Defendant.
On September 10, 1999 and April 30, 2001, Concord Roofing, Inc., which apparently owed plaintiff Cattaraugus County Bank a substantial amount of money, signed promissory notes and security agreements which gave plaintiff a security interest in Concord's accounts receivable. Concord defaulted and plaintiff commenced this action against defendant Benderson Development Company, claiming that defendant owed money to Concord and that plaintiff's security interest in Concord's accounts receivable authorized the suit against defendant. Three causes of action were asserted: one for an account stated, one for breach of contract, and one based on quantum meruit. Defendant's answer alleged that Concord failed to finish its work causing defendant to incur extra costs by hiring replacement contractors, that some of the invoices to Concord had been paid, that some services and/or materials supplied by Concord were not billed at a reasonable or agreed-upon rate, that Benderson had offsets which exceeded the amounts allegedly due and that it had no record of the invoices which plaintiff claims reflect amounts owed by Benderson to Concord.
On March 28, 2005, plaintiff moved for summary judgment, essentially alleging that Concord had billed defendant certain amounts and defendant had not paid them. On April 21, 2005, defendant opposed plaintiff's motion and cross-moved for summary judgment contending that when Concord discontinued operations and abandoned various job sites, defendant incurred expenses that more than offset anything it owed Concord. Included was an affidavit from a former owner of Concord, now an employee of Benderson, that disputed the amounts due Concord and contended that Benderson's offsets exceed what it owed Concord. Included also was an affidavit from Michael Mortimer, an account supervisor with Benderson, that included extensive documentary evidence supporting Benderson's claims. Clearly, based on these submissions, summary judgment would be inappropriate in either direction.
However, in a reply affidavit dated April 28, 2005, the day before oral argument, plaintiff raised for the first time the contention that plaintiff was entitled to summary judgment based on CPLR 3016 (f). The court disagrees for a number of reasons. First, the issue was not raised in the initial summary judgment motion. Raising a new issue in a reply affidavit that is not received until the return date of the initial motion strikes the court as gamesmanship. How was defendant supposed to respond to this new argument under those circumstances?
Second, even if the court were inclined to grant the motion, a decision would be held in abeyance and defendant given an opportunity to amend its answer. The action has been pending only a short time and plaintiff had served an amended complaint after defendant answered the initial complaint; clearly, defendant would have been given an opportunity to amend its answer.
Third, it is not clear to the court that plaintiff itself has sufficiently complied with CPLR 3016 (f). For example, in United Tire and Rubber Co., Ltd. v. Contractor Tire Sales, Inc. ( 124 AD2d 280, 508 NYS2d 78 [3rd Dept. 1986], app. dsmd. 69 NY2d 823, 513 NYS2d 1029), a complaint that listed invoice numbers, dates, and amounts owed on each invoice did not allow the defendant to analyze the transaction without looking at the invoices and therefore, a general denial in the answer was sufficient ( see also, Teal, Becker and Chiaramonte, CPA's, PC v. Sutton, 197 AD2d 768, 602 NYS2d 956 [3rd Dept. 1993]; Green v. Harris, Beach Wilcox, 202 AD2d 993, 609 NYS2d 505 [4th Dept. 1994]). The complaint in this case similarly recites invoice numbers, dates and amounts due but does not contain the invoices.
Finally, counsel for plaintiff concedes that the cases that support his position all involve direct vendor-vendee situations. Here, we have a plaintiff suing a defendant, not because of what the defendant owes the plaintiff but because of what the defendant allegedly owes a third party who has assigned his accounts receivable to the plaintiff. Whether CPLR 3016 (f) would apply on those facts is unclear.
For all these reasons, both motions are denied. The prevailing party on each motion should submit an order unless the parties agree that one order can handle both motions.