Hornell Brewing Co. v. High Grade Beverage

276 A.D.2d 593, 714 N.Y.S.2d 901, 2000 N.Y. App. Div. LEXIS 10374

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 16, 2000
• Status: Published

Opinion

In an action, inter alia, to recover on an account stated, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Joseph, J.), entered September 3, 1999, which granted the plaintiffs motion for partial summary judgment on its second and third causes of action, and (2) a judgment of the same court, entered September 16, 1999, which is in favor of the plaintiff and against it in the principal sum of $260,110. The defendant’s notice of appeal from the order is also deemed to be a notice of appeal from the judgment (see, CPLR 5501 [c]).

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is reversed, on the law, the order is vacated, and the plaintiff’s motion is denied; and it is further,

Ordered that the appellant is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

In opposition to the plaintiff’s prima facie case for partial summary judgment, the defendant submitted evidence of timely oral and written objections to the account rendered. Under the circumstances, the Supreme Court erred in concluding, as a matter of law, that the plaintiff had established an account stated for which summary judgment could be granted (see, Dynaforce v Bruno GMC Truck Sales Corp., 223 AD2d 618; Construction & Mar. Equip. Co. v Crimmins Contr. Co., 195 AD2d 535; Sandvoss v Dunkelberger, 112 AD2d 278). Ritter, J. P., Florio, H. Miller and Feuerstein, JJ., concur.