Opinion
July 2, 1973
In an action to recover a balance due for work, labor and services performed and materials furnished, defendant appeals from an order of the Supreme Court, Westchester County, entered October 20, 1972, which denied its motion to dismiss the complaint pursuant to CPLR 3211 (subd. [a]). (The motion was treated by Special Term as one for summary judgment.) Order affirmed, with $20 costs and disbursements. Defendant's time to serve its answer to the complaint is extended until 20 days after entry of the order to be made hereon. We are not, of course, passing on the merits of appellant's defense but are merely determining that plaintiff's papers raise an issue of fact as to whether there was, as a matter of law, an accord and satisfaction. Rabin, P.J., Hopkins, Munder, Martuscello and Shapiro, JJ., concur.