Ronder & Ronder, P. C. v. Nationwide Abstract Corp.

Appeal from an order of the Supreme Court at Special Term (Pennock, J.), entered December 23, 1982 in Ulster County, which granted plaintiff’s motion for summary judgment. Plaintiff is a professional corporation engaged in the practice of accounting and in the preparation of tax returns. Plaintiff contends that it entered into an “oral/written contract” with defendant whereby it was hired to perform certain services. When payment was not forthcoming, plaintiff commenced this action against defendant to recover for those services. After issue was joined and a bill of particulars was demanded and served, plaintiff moved for summary judgment, which motion was granted by Special Term and, we find, improperly so. It has been long and well established that summary judgment is a drastic remedy and will not be granted if there is any doubt as to the existence of a triable issue (Moskowitz v Garlock, 23 AD2d 943). Because it is the procedural equivalent of a trial {Crowley’s Milk Co. v Klein, 24 AD2d 920), it is used sparingly (Wanger v Zeh, 26 AD2d 729). Beview of this record, including affidavits and attached exhibits, reveals the existence of doubt as to a number of issues, i.e., whether, in fact, there was a contract, the nature and scope of the services to be performed, the fee to be charged therefor, and for whom the services were to be performed. Moreover, the exhibits attached to plaintiff’s moving affidavit clearly indicate that some of the services for which recovery is sought were rendered, not to defendant, but to an officer of the corporation. There is no showing or even a claim that appropriate corporate approval and authorization were obtained. While the better practice would have been for defendant to plead the lack of authority issue as an affirmative defense, the failure to do so does not constitute a waiver (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY) Book 7B, CPLB 3018:13, pp 148-149; CPLB 3212:10, p 431). Because issues of fact which require a trial are apparent, the order should be reversed. Order reversed, on the law, without costs, and motion denied. Kane, J. P., Main, Casey, Mikoll and Yesawich, Jr., JJ., concur.