Lennox Industries, Inc. v. T.M. Bier & Associates, Inc.

201 A.D.2d 539, 609 N.Y.S.2d 816, 1994 N.Y. App. Div. LEXIS 1262

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 14, 1994
• Status: Published

Opinion

In an action to recover damages for goods sold and delivered and to recover upon an account stated, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Collins, J.), entered November 19, 1991, as granted the plaintiff’s motion for summary judgment and struck its defense of payment.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the defendant’s contention, the plaintiff satisfied its initial burden of coming forward with admissible evidence to support its motion for summary judgment on an account-stated theory. The defendant, however, failed to demonstrate, by similarly sufficient evidence, the existence of a factual issue requiring a trial of the action. Therefore, the plaintiff’s motion for summary judgment was properly granted (see, CPLR 3212 [b]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067; Bell-Tronics Communications v Winkler, 178 AD2d 455; Kruger Pulp & Paper Sales v Intact Containers, 100 AD2d 894).

The defendant’s remaining contentions are without merit. Mangano, P. J., Balletta, Friedmann and Florio, JJ., concur.