Golden Star Imports, Ltd. v. Abramov & Sons, Inc.

2021 NY Slip Op 00386

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 2021
• Docket: Index No. 158996/14 Appeal No. 12962 Case No. 2020-00040
• Status: Published

Opinion

Golden Star Imports, Ltd. v Abramov & Sons, Inc. (2021 NY Slip Op 00386)

Golden Star Imports, Ltd. v Abramov & Sons, Inc.

2021 NY Slip Op 00386

Decided on January 26, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: January 26, 2021
Before: Gische, J.P., Kern, Moulton, Shulman, JJ.

Index No. 158996/14 Appeal No. 12962 Case No. 2020-00040

[*1]Golden Star Imports, Ltd., Plaintiff-Appellant,

v

Abramov & Sons, Inc., et al., Defendants-Respondents.

Stein & Stein, LLP, Haverstraw (Ari J. Stein of counsel), for appellant.

Bernard F. Ferrera, Maspeth, for respondents.

Order, Supreme Court, New York County (Carol Ruth Feinman, J.), entered November 14, 2019, which, after a nonjury trial, dismissed the complaint, unanimously affirmed, with costs.

Plaintiff was unable to relate with specificity which items sold were the source of the balance allegedly owed by defendants to plaintiff (see CPLR 3016[f]; Epstein, Levinsohn, Bodine, Hurwitz & Weinstein, LLP v Shakedown Records, Ltd., 8 AD3d 34, 35 [1st Dept 2008]). The parties agreed at trial that plaintiff did not apply defendants' payments to specific items on the invoices, but rather, that plaintiff simply credited the payments toward the oldest invoice. Moreover, plaintiff never presented any evidence showing how it arrived at a sum of $140,093.40 owed to it when the invoice stated that $243,328.05 was the actual amount due.

Plaintiff also failed to prove an account stated by a preponderance of the evidence. Plaintiff's evidence failed to show any agreement by defendants to pay the sum of money plaintiff claimed was due on the account (see Federated Fire Protection Sys. Corp. v 56 Leonard St., LLC, 170 AD3d 432, 433 [1st Dept 2019]; Morrison Cohen Singer & Weinstein, LLP v Ackerman, 280 AD2d 355, 356 [1st Dept 2001]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 26, 2021