McKesson Corp. v. Gabe's Pharmacy, Inc.

248 A.D.2d 445, 669 N.Y.S.2d 518, 1998 N.Y. App. Div. LEXIS 2306

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 9, 1998
• Status: Published

Opinion

—In an action to recover damages for goods sold and delivered, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Dowd, J.), entered August 7, 1996, as denied its cross motion to dismiss the complaint on the ground of accord and satisfaction, and the plaintiff cross-appeals from so much of the same order as denied its motion for summary judgment.

Ordered that the order is affirmed, without costs or disbursements.

The Supreme Court properly denied the motion of the plaintiff McKesson Corporation, doing business as S-P Drug Company, Inc. (hereinafter McKesson), for summary judgment since the affidavit of the president of the defendant Gabe’s Pharmacy, Inc., doing business as Gabe’s Pharmacy (hereinafter the Pharmacy), created an issue of fact as to whether there was an account stated, and as to the amount of money the Pharmacy owed McKesson (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557). Moreover, McKesson’s request for additional relief was not raised before the Supreme Court and is therefore not properly before us (see, Bank of N. Y. v Gray, 228 AD2d 399).

The Supreme Court properly denied the Pharmacy’s cross motion to dismiss the complaint on the ground of accord and satisfaction since there was an issue of fact as to whether McKesson was clearly informed that its acceptance of the Pharmacy’s check would discharge all of its claims against the Pharmacy (see, Dario Marchione Gen. Contr. v CassaraAssociates, 129 AD2d 973; Conboy, McKay, Bachman & Kendall v Armstrong, 110 AD2d 1042, 1043).

Thompson, J. P., Sullivan, Florio and McGinity, JJ., concur.