Summary
In Professional Adv., Inc. v Intercontinental Capital Group, Inc. (113 AD3d 412, 413 [1st Dept 2014]), an account stated action, the Court affirmed the lower court which granted the plaintiff summary judgment based on the documentary evidence showing that the defendant, without objection, received, retained, and partially paid the invoices presented.
Summary of this case from S & S Fashions, Inc. v. US Embroidery Inc.Opinion
2014-01-7
PROFESSIONAL ADVERTISING, INC., doing business as Mail Wholesale, Plaintiff–Respondent, v. INTERCONTINENTAL CAPITAL GROUP, INC., Defendant–Appellant.
Marion & Allen, P.C., New York (Roger Marion and Brad Allen of counsel), for appellant. Stein & Stein, LLP, Haverstraw (Ari J. Stein of counsel), for respondent.
Marion & Allen, P.C., New York (Roger Marion and Brad Allen of counsel), for appellant. Stein & Stein, LLP, Haverstraw (Ari J. Stein of counsel), for respondent.
Order, Supreme Court, New York County (Melvin Schweitzer, J.), entered June 6, 2012, which granted plaintiff's motion for summary judgment on its complaint and defendant's counterclaims, deemed appeal from judgment, same court and Justice, entered August 13, 2011, awarding plaintiff $186,939.92 and dismissing the counterclaims, and so considered, said judgment is unanimously affirmed, without costs.
In this action for an account stated, the motion court properly granted plaintiff's motion for summary judgment based on the documentary evidence showing that defendant “ ‘received, retained without objection, and partially paid invoices without protest’ ” ( see Scheichet & Davis, P.C. v. Nohavicka, 93 A.D.3d 478, 939 N.Y.S.2d 848 [1st Dept.2012], Gamiel v. Curtis & Reiss–Curtis, P.C., 60 A.D.3d 473, 474, 874 N.Y.S.2d 109 [1st Dept. 2009], lv. dismissed13 N.Y.3d 763, 886 N.Y.S.2d 863, 915 N.E.2d 1160 [2009] ). Defendant's challenges to the documentary evidence are without merit since they are “mere conclusions, expressions of hope or unsubstantiated” (Zuckerman v. New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]; see Scheichet & Davis, P.C., 93 A.D.3d 478, 939 N.Y.S.2d 848). The motion court also properly dismissed defendant's counterclaims, which are based on the same conclusory assertions. SWEENY, J.P., ACOSTA, SAXE, MOSKOWITZ, CLARK, JJ., concur.