Opinion
2004-244 Q C.
Decided November 30, 2004.
Appeal by plaintiff from an order of the Civil Court, Queens County (E. Walker, J.), entered December 18, 2003, which denied its unopposed motion for summary judgment.
Order unanimously reversed without costs and plaintiff's motion for summary judgment granted.
PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
In this action to recover upon a breach of contract and upon an account stated, defendant's "answer" admitted liability for the amount demanded. The affidavit submitted in support of plaintiff's motion for summary judgment was executed in Missouri and the Civil Court correctly noted that said affidavit failed to comply with CPLR 2309 (c) ( see Jenkins v. Diamond, 308 AD2d 510; Ford Motor Credit Co. v. Prestige Gown Cleaning Serv., 193 Misc 2d 262). However, in light of the fact that defendant's liability was established by her own admission in response to the complaint, plaintiff's motion for summary judgment should have been granted. We further note that defendant failed to oppose plaintiff's motion for summary judgment.