Opinion
2008-1780 S C.
Decided November 19, 2009.
Appeal from an order of the District Court of Suffolk County, Fourth District (Howard M. Bergson, J.), entered August 15, 2008. The order, insofar as appealed from, granted the branch of plaintiff's motion seeking summary judgment on plaintiff's cause of action for services rendered.
ORDERED that the order, insofar as appealed from, is reversed without costs and the branch of plaintiff's motion seeking summary judgment on plaintiff's cause of action for services rendered is denied.
PRESENT: MOLIA, J.P., LaCAVA and IANNACCI, JJ.
Plaintiff commenced the instant action to recover a balance of $3,094.49 allegedly due for services rendered to defendant. Plaintiff also asserted a cause of action for an account stated. Defendant's verified answer alleged, inter alia, that he was never provided with the hospital room for which he was charged in plaintiff's bill for services. Plaintiff moved for summary judgment on the causes of action for services rendered and an account stated. In support of the motion, plaintiff submitted the affidavit of its collection manager, who alleged that defendant was billed for services rendered on April 17, 2007 through April 19, 2007. The itemized bill annexed to the motion papers contained, among other things, a charge for a hospital room in the sum of $4,038. It was further alleged that the charges for the services rendered were reasonable and customary.
Defendant submitted opposition papers, which the District Court did not consider because defendant had not provided an affidavit of service thereof. The District Court granted plaintiff's motion only with respect to the cause of action to recover for services rendered.
On appeal, defendant contends that he was overcharged because he was never provided the hospital room as charged in plaintiff's bill and that the District Court should have considered his affidavit in opposition to the motion for summary judgment. In our view, defendant raised a triable issue of fact since he alleged in his verified answer, which may be used in lieu of a sworn statement (CPLR 105 [u]), that he was billed for a hospital room which plaintiff never provided to him. Accordingly, the order, insofar as appealed from, is reversed and the branch of plaintiff's motion seeking summary judgment on its cause of action for services rendered is denied.
Molia, J.P., LaCava and Iannacci, JJ., concur.