Construction & Marine Equipment Co. v. Thomas Crimmins Contracting Co.

In an action to recover damages for breach of contract and upon an account stated, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), entered August 16, 1991, as denied its motion for summary judgment on the second cause of action set forth in the verified complaint. Ordered that the order is affirmed insofar as appealed from, with costs. We agree with the Supreme Court that the evidence of the parties’ course of dealings, as set forth in the defendant’s papers in opposition to the motion, raises a triable issue of fact regarding the existence of an account stated. In view of the defendant’s claim that the account has been the subject of repeated and long-standing oral disputes and that payments have only been made for those charges which the plaintiff has documented and verified, the denial of summary judgment was proper (see generally, Scheichet & Davis v Steinger, 183 AD2d 479; Ronny-Gerard, Inc. v Zimmerman, 150 AD2d 438; Harold R. Clune, Inc. v Healthco Med. Supply, 78 AD2d 914; James Talcott, Inc. v United States Tel. Co., 52 AD2d 197). We find that the defendant’s evidentiary submissions on the motion were adequately specific under the circumstances of this case and in relation to the degree of specificity employed in the plaintiff’s letter and invoice dated September 4, 1990. Sullivan, J. P., Lawrence, Eiber and Ritter, JJ., concur.