Opinion
October 31, 1960
Marvin M. Hoffman for plaintiff.
Nathan R. Richman for defendant.
Pursuant to rule 113 of the Rules of Civil Practice the plaintiff moves for summary judgment. Attached to the moving papers is plaintiff's complaint which sets forth a cause of action for goods sold and delivered. Attached to the complaint is a schedule which the plaintiff argues is in compliance with section 255-a of the Civil Practice Act. The defendant served an answer containing a general denial, copy of which is also attached to the moving papers.
The pertinent portion of the schedule attached to plaintiff's complaint is as follows:
Date Description Charges Balance
Nov. 14, 1959 Inv. #20329 (4) (1) 965.00 Dec. 21, 1959 Inv. #20481 (5) (2) 137.25 (3) 1,102.25. Section 255-a states that in an action of this nature the plaintiff may in a schedule attached to his complaint set forth and number items of his claim and the reasonable value or agreed price of each. If the plaintiff complies with these provisions then the defendant must in his answer indicate specifically the items which he disputes in respect to delivery, or performance, reasonable value or agreed price. ( Brozyna v. Andreski, 6 A.D.2d 601, 602.)The plaintiff must in the first instance set forth evidentiary facts as shall establish its cause of action sufficiently to entitle it to judgment as a matter of law. Anything less requires the denial of the motion even if the opposing papers are insufficient. ( O'Connor-Sullivan, Inc. v. Otto, 283 App. Div. 269. ) The plaintiff has set forth the items of its claim in the schedule attached to the complaint by merely referring to invoice numbers and the dates thereof. The plaintiff did not attach copies of the invoices to the schedule. The court is unable to determine whether or not the description of the items, if any, contained in the invoices are sufficient to comply with the statute. The plaintiff's affidavit supporting the motion for summary judgment simply recites facts claiming that the plaintiff's complaint complies with section 255-a of the Civil Practice Act and that therefore the defendant's answer should be dismissed inasmuch as it contains only a general denial. This court finds the plaintiff's complaint does not comply with section 255-a of the Civil Practice Act in that it does not contain an adequate description of the goods that were sold.
The plaintiff's motion for summary judgment is therefore denied. Ordered accordingly.