Opinion
8779 Index 153154/16
03-26-2019
EPF INTERNATIONAL LIMITED, Plaintiff–Respondent, v. LACEY FASHIONS INC., Defendant–Appellant.
Law Offices of Jason Lowe, New York (Jason Lowe of counsel), for appellant. Bernard D'Orazio & Associates, P.C., New York (Bernard D'Orazio of counsel), for respondent.
Law Offices of Jason Lowe, New York (Jason Lowe of counsel), for appellant.
Bernard D'Orazio & Associates, P.C., New York (Bernard D'Orazio of counsel), for respondent.
Sweeny, J.P., Richter, Tom, Kapnick, Oing, JJ.
The record establishes that plaintiff, a Hong Kong-based corporation in the business of selling, inter alia, wigs, demonstrated its entitlement to summary judgment on an account stated ( L.E.K. Consulting LLC v. Menlo Capital Group, LLC , 148 A.D.3d 527, 528, 52 N.Y.S.3d 1 [1st Dept. 2017] ). Plaintiff established that it prepared and sent invoices to defendant in the ordinary course of its business, that defendant's partial payment confirmed it received them ( Kucker & Bruh, LLP v. Sendowski, 136 A.D.3d 475, 24 N.Y.S.3d 507 [1st Dept. 2016] ), and that defendant did not object to the invoices in a timely fashion.
Defendant's argument that there is no evidence the invoices were sent and received, and that plaintiff's reply affirmation, which provided additional detail on its office procedures, should not have been considered, is unavailing. The function of reply papers is to address arguments made in opposition to the position taken by the movant, and not to permit the movant to introduce new arguments in support of, or new grounds for the motion ( Dannasch v. Bifulco, 184 A.D.2d 415, 417, 585 N.Y.S.2d 360 [1st Dept. 1992] ). Here the reply affirmation of plaintiff's executive director responded to issues raised in defendant's opposition papers regarding the admissibility of plaintiff's business records ( Castano v. Wygand, 122 A.D.3d 476, 997 N.Y.S.2d 36 [1st Dept. 2014] ); see also Sanford v. 27–29 W. 181st St. Assn., 300 A.D.2d 250, 753 N.Y.S.2d 49 [1st Dept. 2002] ). It did not improperly raise new arguments or theories on which to base its motion.
Defendant's argument that plaintiff, a foreign corporation not licensed to do business in New York, is precluded from maintaining suit pursuant to Business Corporation Law (BCL) § 1312(a) is also unavailing. A defendant relying upon BCL § 1312(a) has the burden of proving that the foreign corporate plaintiff was "doing business" in New York without authority (see S & T Bank v. Spectrum Cabinet Sales, 247 A.D.2d 373, 668 N.Y.S.2d 641 [2d Dept. 1998] ). Defendant has offered no such proof.
We have considered defendant's remaining contentions and find them unavailing.