D'Agostino v. D'Agostino

262 A.D.2d 269, 695 N.Y.S.2d 97, 1999 N.Y. App. Div. LEXIS 5937

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 1, 1999
• Status: Published

Opinion

—In an action to recover money owed on a loan, the defendant Charles A. D’Agostino, Jr., appeals, as limited by his brief, from so much of (1) an order of the Supreme Court, Westchester County (Donovan, J.), entered July 28, 1998, as granted that branch of the plaintiffs motion which was for summary judgment against him, and (2) an order of the same court, entered August 27, 1998, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the order entered July 28, 1998, is dismissed, as that order was superseded by the order entered August 27, 1998, made upon reargument; and it is further,

Ordered that the order entered August 27, 1998, is affirmed insofar as appealed from; and it is further,

Ordered that the respondent is awarded one bill of costs.

The plaintiff sufficiently demonstrated that there exist no triable issues of fact regarding whether he loaned the appellant $55,000 to relieve him of financial, criminal, and legal difficulties or whether the appellant failed to repay that amount to the plaintiff. The appellant’s conclusory statements in opposition to these claims are insufficient to raise a triable issue of fact (see, Zuckerman v City of New York, 49 NY2d 557, 562). In addition, the appellant’s receipt of the plaintiffs demand letter without objection within a reasonable time gave rise to an actionable implied account stated (see, Werner v Nelkin, 206 AD2d 422, 423). Therefore, the Supreme Court properly granted the plaintiffs motion for summary judgment against the appellant.

The parties’ remaining contentions are without merit. O’Brien, J. P., Florio, H. Miller and Smith, JJ., concur.