Opinion
1051 CA 14-02062.
10-02-2015
ERIE MATERIALS, INC., Plaintiff–Respondent, v. CENTRAL CITY ROOFING CO., INC., Defendant–Appellant, and James T. Pipines, Defendant.
The Ward Firm, PLLC, Liverpool (Linda M. Campbell of Counsel), for Defendant–Appellant. Byrne, Costello & Pickard, P.C., Syracuse (Jordan R. Pavlus of Counsel), for Plaintiff–Respondent.
The Ward Firm, PLLC, Liverpool (Linda M. Campbell of Counsel), for Defendant–Appellant.
Byrne, Costello & Pickard, P.C., Syracuse (Jordan R. Pavlus of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, AND DeJOSEPH, JJ.
Opinion
MEMORANDUM: Central City Roofing Co., Inc. (defendant) appeals from those parts of an order granting plaintiff's motion for partial summary judgment insofar as plaintiff sought a money judgment on its first cause of action for goods sold and delivered, and dismissal of defendant's counterclaims. Contrary to defendant's contention, plaintiff's complaint, with its attached invoices, satisfied the pleading requirements of CPLR 3016(f) (see Offset Paperback Mfrs. v. Banner Press, 47 A.D.2d 733, 733, 365 N.Y.S.2d 214, affd. 39 N.Y.2d 770, 384 N.Y.S.2d 780, 349 N.E.2d 880 ; Duban v. Platt, 23 A.D.2d 660, 660, 257 N.Y.S.2d 109, affd. 17 N.Y.2d 526, 267 N.Y.S.2d 907, 215 N.E.2d 164, rearg. denied 17 N.Y.2d 612 ; Netguistics, Inc. v. Coldwell Banker Prime Props., Inc., 23 A.D.3d 719, 719–720, 803 N.Y.S.2d 737 ). The invoices provided the requisite degree of specificity inasmuch as they permitted defendant “ ‘to respond in a meaningful way on an item-by-item basis' ” (Green v. Harris Beach & Wilcox, 202 A.D.2d 993, 993, 609 N.Y.S.2d 505 ). Each invoice set forth the date of the order, the specific items ordered and delivered, the quantity ordered and delivered, as well as the price per unit and the total price for the quantity ordered (see Offset Paperback Mfrs., 47 A.D.2d at 733, 365 N.Y.S.2d 214 ; Netguistics, Inc., 23 A.D.3d at 719–720, 803 N.Y.S.2d 737 ; O'Callaghan v. Republic W. Ins. Co., 269 A.D.2d 114, 114, 701 N.Y.S.2d 898, lv. denied 95 N.Y.2d 758, 713 N.Y.S.2d 522, 735 N.E.2d 1287 ; cf. Waterfront Operations Assoc., LLC v. Candino, 115 A.D.3d 1313, 1314, 983 N.Y.S.2d 168 ; Epstein, Levinsohn, Bodine, Hurwitz & Weinstein, LLP v. Shakedown Records, Ltd., 8 A.D.3d 34, 35, 777 N.Y.S.2d 633 ). Defendant was thus required to indicate specifically in its verified answer “those items [it] dispute[d] and whether in respect of delivery or performance, reasonable value or agreed price” (CPLR 3016[f] ). Defendant failed to do so and, therefore, Supreme Court properly granted that part of plaintiff's motion on the cause of action for goods sold and delivered (see Netguistics, Inc., 23 A.D.3d at 720, 803 N.Y.S.2d 737 ; see also Duban, 23 A.D.2d at 660, 257 N.Y.S.2d 109 ; Cibro Petroleum Prods. v. Onondaga Oil Co., 144 A.D.2d 152, 153, 534 N.Y.S.2d 480 ).
Defendant's contention that the court should have ordered defendant to amend the answer under the authority of CPLR 2001 is not properly before us inasmuch as it “is ... raised for the first time on appeal” (Paporters v. Campos, 122 A.D.3d 521, 522, 998 N.Y.S.2d 9 ; see Brandenburg v. St. Michael's Cemetery, 92 A.D.3d 631, 633, 938 N.Y.S.2d 159 ; Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 ).
Defendant further contends that the court erred in granting that part of plaintiff's motion seeking to dismiss the counterclaims as barred by the four-year statute of limitations set forth in UCC 2–725(1). Even assuming, arguendo, that defendant is correct that the statute of limitations does not bar its counterclaims, we would nevertheless affirm the order inasmuch as the court also dismissed the counterclaims as barred by the statute of frauds set forth in UCC 2–201(1). By failing to address that basis for the dismissal of the counterclaims in its brief on appeal, defendant has abandoned any challenge with respect thereto (see Sto Corp. v. Henrietta Bldg. Supplies, 202 A.D.2d 969, 970, 609 N.Y.S.2d 746 ; Ciesinski, 202 A.D.2d at 984, 609 N.Y.S.2d 745 ). Inasmuch as any resolution of the statute of limitations issue would have no effect on the outcome of this appeal, we decline to address that issue as academic (see generally Matter of Hoston v. New York State Dept. of Health, 203 A.D.2d 826, 827, 611 N.Y.S.2d 61, lv. denied 84 N.Y.2d 803, 617 N.Y.S.2d 137, 641 N.E.2d 158 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed with costs.