Oncological Associates v. NCB Collection Services, Inc.

— In an action for an accounting, the defendant appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Nassau County (Pittoni, R.), entered April 17, 1984, as, after a hearing, awarded the plaintiff the sum of $4,426.07, and dismissed its counterclaim.

Judgment affirmed insofar as appealed from, with costs.

The evidence presented at the hearing supports the Referee’s determination that the defendant owed the plaintiff the sum of money which was awarded. We find no basis in the record to warrant disturbing that award. In addition, we find that the Referee properly dismissed the defendant’s counterclaim. There was no evidence presented at the hearing in support of the counterclaim. Indeed, the only evidence at the hearing which had any relation to the counterclaim was the testimony of the plaintiff’s witness to the effect that the plaintiff did not collect any insurance proceeds with respect to the claims at issue. As this testimony was directly at odds with the defendant’s position, and the defendant presented no evidence to the contrary, it was proper for the Referee to dismiss the counterclaim. Mollen, P. J., Lazer, Thompson and Kunzeman, JJ., concur.