Hoffinger Stern & Ross v. Neuman

Appeal from order, Supreme Court, New York County (Louis B. York, J.), entered April 11, 2012, which granted plaintiff’s motion for summary judgment on its cause of action for an account stated, deemed appeal from judgment, same court and Justice, entered April 23, 2012 (CPLR 5520 [c]), and so considered, said judgment unanimously reversed, on the law, without costs, and the judgment vacated, and plaintiffs motion denied.

In light of the strong policy of resolving disputes on the merits, and in the absence of a claim of prejudice by plaintiff, the court properly considered defendants’ opposition to plaintiffs motion, despite the fact that it was served five or six hours after the time to which the parties stipulated (see Green v Mohamed, 275 AD2d 599 [1st Dept 2000]).

Defendants raised an issue of fact whether they objected to the March 5, 2008 invoice that is the sole basis of the account stated cause of action (see Russo v Heller, 80 AD3d 531 [1st Dept 2011]). In correspondence throughout early March 2008, *564including a letter dated March 6, defendants refer to “the amount allegedly owed,” and, from plaintiffs responding correspondence, it appears that plaintiff understood that language as a challenge to the validity of the invoice. Concur — Andrias, J.P., Friedman, Acosta, DeGrasse and Freedman, JJ. [Prior Case History: 2012 NY Slip Op 30951(U).]