Jovee Contracting Corp. v. AIA Environmental Corp.
Opinion of the Court
—In an action, inter alia, to recover damages for breach of contract and to recover on accounts stated, the defendant appeals (1), as limited by its
Ordered that the appeals from the orders dated December 9, 1999, and entered February 9, 2000, are dismissed; and it is further,
Ordered that the appeal from the judgment is dismissed, as the judgment was superseded by the order dated May 4, 2000; and it is further,
Ordered that the order dated May 4, 2000, is affirmed insofar as appealed from; and it is further,
Ordered that the respondent is awarded one bill of costs.
The appeals from the intermediate orders must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The appeal from the order entered February 9, 2000, is also dismissed because no appeal lies of right from an order entered sua sponte (see, CPLR 5701 [c]). The issues raised on appeal from the intermediate orders are brought up for review and have been considered on the appeal from the order dated May 4, 2000 (see, CPLR 5501 [a] [1]).
In July 1997 the defendant hired the plaintiff subcontractor to perform demolition work at a site in Melville for $410,000. The defendant paid the plaintiff $270,000 and, on or about November 11, 1997, the plaintiff issued an invoice for the $140,000 balance. Thereafter, the defendant made an additional $60,000 payment upon that invoice, leaving an unpaid balance of $80,000. Additional services were provided by the plaintiff at four other sites. At those sites, the plaintiff provided the defendant with “roll-off” containers and debris removal services. Although the defendant signed delivery tickets in connection with the plaintiff’s services, and the plaintiff sent state-
Contrary to the defendant’s contention, the Supreme Court properly granted the plaintiffs motion for summary judgment. The plaintiff met its initial burden of demonstrating its entitlement to judgment as a matter of law on its causes of action to recover on accounts stated by establishing, with evidence in admissible form, the receipt and retention of bills by the defendant without objection within a reasonable period of time (see, Sullivan v REJ Corp., 255 AD2d 308; Rona-Tech Corp. v LeaRonal, Inc., 254 AD2d 473; Moses & Singer v S & S Mach. Corp., 251 AD2d 271), and the partial payment of some of those bills (see, Hoyniak v Acton, 271 AD2d 892). In opposition, the defendant failed to meet its burden of demonstrating the existence of a triable issue of fact (see, Zuckerman v City of New York, 49 NY2d 557). It failed to set forth evidentiary details such as when, where, or by whom its alleged objections to the amounts due as to all four contracts were made, or that it ever complained to the plaintiff about the quality of the work performed (see, Wit’s End Giftique v Ianniello, 277 AD2d 684; Hoyniak v Acton, supra; Biegen v Paul K. Rooney, P. C., 269 AD2d 264; Half Intl. v Re-Track USA, 261 AD2d 376, 377). The defendant’s contention that summary judgment was precluded by the assertion of its counterclaims is without merit, as the counterclaims are not “inextricably interwoven” with the plaintiffs accounts stated causes of action (Vanier v Vanier, 119 AD2d 903, 904).
The defendant’s contention that the Supreme Court erred by dismissing, as academic, that branch of its motion which was to stay entry of judgment in the plaintiffs favor until the counterclaims are resolved is also without merit because judgment in the plaintiffs favor had already been entered (see, C.T. Chems. v Vinmar Impex, 189 AD2d 727). In any event, a stay
Case-law data current through December 31, 2025. Source: CourtListener bulk data.