Boise Cascade Office Products Corp. v. Gilman & Ciocia, Inc.

Majority

p. 454

Boise Cascade Office Products Corporation, Respondent, v Gilman & Ciocia, Inc., Appellant.

[816 NYS2d 374]

In an action to recover payment for goods sold and delivered, the defendant appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated January 12, 2005, which granted the plaintiff’s motion for summary judgment and to strike its counterclaim.

Ordered that the order is affirmed, with costs.

The plaintiff established its prima facie entitlement to judgment as a matter of law by tendering evidence that, between July 18, 2003 and November 20, 2003, it sold and delivered goods to the defendant in the amount of $25,212.73, which the defendant accepted but did not pay for (see Neuman Distribs. v Falak Pharm. Corp., 289 AD2d 310 [2001]; Schneider Fuel Oil v

p. 455

DeGennaro, 238 AD2d 495 , 495-496 [1997]). In opposition, the defendant failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 , 562 [1980]; Neuman Distribs. v Jacobi Med. Ctr., 298 AD2d 568 [2002]). Specifically, the affidavit of the defendant’s chief accounting officer, claiming that the plaintiff overcharged the defendant for certain frequently used items, was unsubstantiated, conclusory, and insufficient to raise a triable issue of fact (see Becker v Shore Drugs, 296 AD2d 515 [2002]; Neuman Distribs. v Falak Pharm. Corp., supra).

The defendant’s remaining contentions are without merit. Florio, J.E, Adams, Luciano and Fisher, JJ., concur.

Cases cited

Neuman Distributors, Inc. v. Falak Pharmacy Corp. 289 AD2d 310 N.Y. App. Div. 2001-12-10 p. 454
Zuckerman v. City of New York 49 NY2d 557 N.Y. 1980-04-01 at 562 p. 455
Neuman Distributors, Inc. v. Jacobi Medical Center 298 AD2d 568 N.Y. App. Div. 2002-10-28 p. 455
Becker v. Shore Drugs, Inc. 296 AD2d 515 N.Y. App. Div. 2002-07-22 p. 455