Shapiro v. Fox-Rich Textiles, Inc.

Appellate Division of the Supreme Court of New York

Shapiro v. Fox-Rich Textiles, Inc.

209 A.D.2d 364, 619 N.Y.S.2d 556

Appellate Division of the Supreme Court of the State of New York·Decided November 29, 1994·Published

Opinion

—Order, Supreme Court, New York [365]*365County (Carol Arber, J.), entered on or about January 25, 1994, which denied plaintiffs motion for summary judgment, unanimously affirmed, without costs.

Plaintiff is not entitled to judgment pursuant to CPLR 3016 (f) as the papers submitted in opposition to the motion for summary judgment suffice to controvert plaintiff’s right to summary judgment (Belcher Co. v Etzkowitz, 90 AD2d 783; Slavenburg Corp. v Rudes, 86 AD2d 517, 518). Nor has plaintiff met his burden of demonstrating a right to judgment as a matter of law on an account stated theory in light of the asserted voluntary reductions and discrepancies between the annexed invoices and the amount demanded (see, Santora & McKay v Mazzella, 182 AD2d 572; Law Firm of Ira H. Leibowitz, Lasky & Peterson v Sikowitz, 129 AD2d 774; see also, Peterson v IBJ Schroder Bank & Trust Co., 172 AD2d 165).

We have considered the additional arguments raised by plaintiff and find them to be without merit. Concur—Sullivan, J. P., Ellerin, Kupferman and Asch, JJ.

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—Order, Supreme Court, New York [365]*365County (Carol Arber, J.), entered on or about January 25, 1994, which denied plaintiffs motion for summary judgment, unanimously affirmed, without costs.

Plaintiff is not entitled to judgment pursuant to CPLR 3016 (f) as the papers submitted in opposition to the motion for summary judgment suffice to controvert plaintiff’s right to summary judgment (Belcher Co. v Etzkowitz, 90 AD2d 783; Slavenburg Corp. v Rudes, 86 AD2d 517, 518). Nor has plaintiff met his burden of demonstrating a right to judgment as a matter of law on an account stated theory in light of the asserted voluntary reductions and discrepancies between the annexed invoices and the amount demanded (see, Santora & McKay v Mazzella, 182 AD2d 572; Law Firm of Ira H. Leibowitz, Lasky & Peterson v Sikowitz, 129 AD2d 774; see also, Peterson v IBJ Schroder Bank & Trust Co., 172 AD2d 165).

We have considered the additional arguments raised by plaintiff and find them to be without merit. Concur—Sullivan, J. P., Ellerin, Kupferman and Asch, JJ.

Shapiro v. Fox-Rich Textiles, Inc., 209 A.D.2d 364, 619 N.Y.S.2d 556 (N.Y. Ct. App. 1994).

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Opinion

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