Opinion
March 9, 1998
Appeal from the Supreme Court, Kings County (Dowd, J.).
Ordered that the order is affirmed, without costs or disbursements.
The Supreme Court properly denied the motion of the plaintiff McKesson Corporation, doing business as S-P Drug Company, Inc. (hereinafter McKesson), for summary judgment since the affidavit of the president of the defendant Gabe's Pharmacy, Inc., doing business as Gabe's Pharmacy (hereinafter the Pharmacy), created an issue of fact as to whether there was an account stated, and as to the amount of money the Pharmacy owed McKesson (see, CPLR 3212 [b]; Zuckerman v. City of New York, 49 N.Y.2d 557). Moreover, McKesson's request for additional relief was not raised before the Supreme Court and is therefore not properly before us (see, Bank of N.Y. v. Gray, 228 A.D.2d 399).
The Supreme Court properly denied the Pharmacy's cross motion to dismiss the complaint on the ground of accord and satisfaction since there was an issue of fact as to whether McKesson was clearly informed that its acceptance of the Pharmacy's check would discharge all of its claims against the Pharmacy (see, Dario Marchione Gen. Contr. v. Cassara-Associates, 129 A.D.2d 973; Conboy, McKay, Bachman Kendall v. Armstrong, 110 A.D.2d 1042, 1043).
Thompson, J. P., Sullivan, Florio and McGinity, JJ., concur.