Trager Glass & Co. v. Statbrook Contracting Corp.

197 A.D.2d 476, 602 N.Y.S.2d 848, 1993 N.Y. App. Div. LEXIS 10034

Opinion

—Order, Supreme Court, New York County (Carmen Beauchamp Ciparick, J.), entered October 15, 1992, which granted plaintiffs motion for summary judgment on its cause of action for account stated and dismissed defendant’s counterclaims for professional malpractice, and order, same court and Justice, entered on or about February 26, 1993, which, inter alia, denied defendant’s motion for renewal, unanimously affirmed, with one bill of $250 costs and disbursements of these appeals.

We agree with the IAS Court that plaintiff tendered evidentiary proof in admissible form sufficient to show an account stated (see, Peterson v IBJ Schroder Bank & Trust Co., 172 AD2d 165, 166), and that defendant’s opposition, which did little more than track its answer, failed to produce evidentiary proof in admissible form in support of its position that it had orally communicated its dissatisfaction with plaintiff’s services on many occasions (see, Fink, Weinberger, Fredman, Berman & Lowell v Petrides, 80 AD2d 781, appeal dismissed 53 NY2d 1028). Defendant’s motion to renew was properly denied since defendant was well aware of its reliance on its current accountant to prove its claims against plaintiff, having listed him as a witness in the answers to plaintiff’s interrogatories (see, Pahl Equip. Corp. v Kassis, 182 AD2d 22, lv denied in part and dismissed in part 80 NY2d 1005). Concur—Sullivan, J. P., Wallach, Kupferman and Nardelli, JJ.