Hull v. City of North Tonawanda

6 A.D.3d 1142, 775 N.Y.S.2d 656, 2004 N.Y. App. Div. LEXIS 6127

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 2004
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Niagara County (Amy J. Fricano, J.), entered March 5, 2003. The order, insofar as appealed from, denied that part of plaintiffs motion for summary judgment on the second cause of action seeking damages based on an account stated.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied that part of plaintiff’s motion seeking summary judgment on the second cause of action based on an account stated. Plaintiff commenced this action seeking payment for services he rendered as a hearing officer in a proceeding brought pursuant to Civil Service Law § 75. Plaintiff’s own proof in support of the motion establishes that, when defendant was contacted for payment, defendant complained that plaintiff had charged defendant for time spent correcting the hearing transcript. “There can be no account stated where . . . any dispute about the account is shown to have existed” (Abbott, Duncan & Wiener v Ragusa, 214 AD2d 412, 413 [1995]). Because plaintiff failed to establish the absence of any dispute about the account and thus did not meet his initial burden, we do not address the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Present—Pigott, Jr., EJ., Green, Wisner, Scudder and Gorski, JJ.