Opinion
July 13, 1970
In an action for goods sold and delivered (first cause) and upon a promissory note (second cause), plaintiff appeals from an order of the County Court, Suffolk County, dated February 7, 1969, which denied its motion to dismiss defendant's defenses and counterclaim and for partial summary judgment. Order reversed, with $10 costs and disbursements; plaintiff's motion for partial summary judgment on its first cause of action granted in the sum of $4,019.87, with interest; plaintiff's second cause of action dismissed, with prejudice, on plaintiff's consent; and defendant's answer dismissed. In our opinion, defendant's failure to deny specifically items in the schedule annexed to plaintiff's complaint (CPLR 3016, subd. [f]) does not bar the denial of plaintiff's motion for partial summary judgment if a triable issue is raised on the motion (cf. Aluminum Bldg. Prods. Corp. v. Katz, 30 A.D.2d 571). However, defendant did not allege any evidentiary fact showing that any materials delivered by plaintiff were defective or were returned. In addition, defendant's defense and counterclaim, based upon an oral executory accord, is evidentially insufficient. First, defendant did not allege any fact showing that a representative of plaintiff had entered into the purported accord on plaintiff's behalf. Second, an accord, the satisfaction of which is to occur after its making, is not effective as a defense or as the basis of a counterclaim unless "the promise of the party against whom it is sought to enforce the accord is in writing and signed by such party or by his agent" (General Obligations Law, § 15-501, subd. 2). Christ, P.J., Rabin, Hopkins, Munder and Benjamin, JJ., concur.