Shaw v. Friedman

Appellate Division of the Supreme Court of New York

Shaw v. Friedman

170 A.D.2d 1048, 566 N.Y.S.2d 116, 1991 N.Y. App. Div. LEXIS 1930

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 1, 1991

StatusPublished

Cited by1 cases

This text of 170 A.D.2d 1048 (Shaw v. Friedman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shaw v. Friedman, 170 A.D.2d 1048, 566 N.Y.S.2d 116, 1991 N.Y. App. Div. LEXIS 1930 (N.Y. Ct. App. 1991).

Pincite

Opinion

Order unanimously reversed on the law with costs and motion denied. Memorandum: Special Term erred in granting plaintiffs motion for summary judgment. Although plaintiff has met its burden of establishing a prima facie case for an account stated (see, CPLR 3212 [b]), defendant has met his burden of raising a triable issue of fact by submitting proof in admissible form that the account had been assigned prior to the commencement of the action and plaintiff no longer had title to the account nor an interest in it. Such a showing is sufficient to defeat plaintiff’s motion for summary judgment (see, Zuckerman v City of New York, 49 NY2d 557; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065). In addition, defendant’s failure to raise the affirmative defense of failure to state a cause of action in his answer is not fatal because the defense may be raised at any time and survives the joinder of issue (see, CPLR 3211 [e]). (Appeal from Order of Supreme Court, Nassau County, Collins, J.—Summary Judgment.) Present— Doerr, J. P., Boomer, Pine, Lawton and Lowery, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order unanimously reversed on the law with costs and motion denied. Memorandum: Special Term erred in granting plaintiffs motion for summary judgment. Although plaintiff has met its burden of establishing a prima facie case for an account stated (see, CPLR 3212 [b]), defendant has met his burden of raising a triable issue of fact by submitting proof in admissible form that the account had been assigned prior to the commencement of the action and plaintiff no longer had title to the account nor an interest in it. Such a showing is sufficient to defeat plaintiff’s motion for summary judgment (see, Zuckerman v City of New York, 49 NY2d 557; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065). In addition, defendant’s failure to raise the affirmative defense of failure to state a cause of action in his answer is not fatal because the defense may be raised at any time and survives the joinder of issue (see, CPLR 3211 [e]). (Appeal from Order of Supreme Court, Nassau County, Collins, J.—Summary Judgment.) Present— Doerr, J. P., Boomer, Pine, Lawton and Lowery, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

170 A.D.2d 1048, 566 N.Y.S.2d 116, 1991 N.Y. App. Div. LEXIS 1930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shaw-v-friedman-nyappdiv-1991.

Opinion

Related

Cite This Page — Counsel Stack