Opinion
2013-11536, Index No. 10587/12.
10-14-2015
VANZO WHOLESALE FOOD EQUIPMENT, INC., respondent, v. 28 McEWAN STREET, LLC, doing business as Fratellos Brick Oven Pizza, appellant.
Peter J. Gleason, New York, N.Y., for appellant. Stein & Stein, LLP, Haverstraw, N.Y. (Ari J. Stein of counsel), for respondent.
Peter J. Gleason, New York, N.Y., for appellant.
Stein & Stein, LLP, Haverstraw, N.Y. (Ari J. Stein of counsel), for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, HECTOR D. LaSALLE, and BETSY BARROS, JJ.
Opinion In an action, inter alia, to recover on an account stated, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Orange County (Marx, J.), dated October 1, 2013, as granted the plaintiff's motion for summary judgment on the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In support of its motion for summary judgment on the complaint, the plaintiff submitted the affidavit of its president, stating that the plaintiff generated billing invoices as well as the statement of account for the defendant in the regular course of business, which the defendant accepted and retained, without objection. The billing invoices further demonstrated that the defendant had made partial payments on the account. Consequently, the plaintiff established its prima facie entitlement to judgment as a matter of law on its cause of action to recover on an account stated (see National Commerce Exch. of Long Is., Inc. v. Cosmopolitan Coach, Ltd., 120 A.D.3d 1208, 1209, 992 N.Y.S.2d 309 ; Citibank [S.D.] N.A. v. Cutler, 112 A.D.3d 573, 574, 976 N.Y.S.2d 196 ; American Express
Centurion Bank v. Gabay, 94 A.D.3d 795, 795, 941 N.Y.S.2d 863 ; LD Exch. v. Orion Telecom. Corp., 302 A.D.2d 565, 565, 755 N.Y.S.2d 630 ). In opposition, the defendant failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; Manufacturers & Traders Trust Co. v. Capital Bldg. & Dev., Inc., 114 A.D.3d 912, 913, 980 N.Y.S.2d 813 ; Cutter Bayview Cleaners, Inc. v. Spotless Shirts, Inc., 57 A.D.3d 708, 710, 870 N.Y.S.2d 395 ). The defendant's contention that the motion for summary judgment was premature because disclosure was not complete is without merit, since it failed to demonstrate “that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant” (Williams v. Spencer–Hall, 113 A.D.3d 759, 760, 979 N.Y.S.2d 157 ; see Singh v. Avis Rent A Car Sys., Inc., 119 A.D.3d 768, 770, 989 N.Y.S.2d 302 ; Boorstein v. 1261 48th St. Condominium, 96 A.D.3d 703, 704, 946 N.Y.S.2d 200 ). Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the complaint.
Since the defendant's appendix was inadequate (see CPLR 5528[a][5] ; Rules of App.Div., 2d Dept [22 NYCRR] § 670.10.2[c][1] ), the plaintiff is entitled to recover from the defendant the expense of printing, serving, and filing its supplemental appendix (see CPLR 5528[e] ; Matter of Costco Wholesale Corp. v. Town Bd. of Town of Oyster Bay, 90 A.D.3d 657, 659, 934 N.Y.S.2d 430 ; Wenger v. Alidad, 265 A.D.2d 322, 324, 696 N.Y.S.2d 227 ; Fidelity N.Y. v. Madden, 212 A.D.2d 572, 573–574, 622 N.Y.S.2d 744 ).