Hoyniak v. Acton

Carpinello, J. Appeals (1) from an order of the Supreme Court (Kane, J.), entered April 20, 1999 in Sullivan County, which, inter alia, granted plaintiff partial summary judgment on the second cause of action for an account stated, (2) from the judgment entered thereon, and (3) from an order of said court, entered June 23, 1999 in Sullivan County, which denied defendant’s motion for reconsideration. In 1995, plaintiff performed construction work for defendant in the amount of $129,327. To date, he has only received partial payments for this work and a balance of $69,327 remains outstanding. In this action commenced by plaintiff to recover these funds, Supreme Court granted plaintiff summary judgment on an account stated basis. Following an unsuccessful motion for reconsideration, defendant appeals. We affirm. The undisputed facts in the record demonstrate that following completion of the construction project, plaintiff twice personally handed defendant a detailed invoice outlining the work performed, the materials used and the balance due. These invoices were never objected to by defendant, nor did defendant ever complain about the quality of the work performed. It is also undisputed that defendant made one partial payment in August 1995, that he orally assured plaintiff that he would pay the balance and that he was sent six consecutive monthly invoices between August 1995 and January 1996 outlining the balance due. None of these invoices was objected to by defendant. Defendant’s attempt to refute these facts before Supreme Court was patently insufficient, and the “factual” issues which he claims preclude summary judgment are feigned and wholly unsupported in the record. Under these circumstances, Supreme Court clearly did not err in searching the record and granting plaintiff summary judgment on his account stated claim (see, e.g., Percy & Assocs. v Collura, 239 AD2d 650, 651; Cibro Petroleum Prods. v Onondaga Oil Co., 144 AD2d 152, 153-154). Mercure, J. P., Crew III, Spain and Graffeo, JJ., concur. Ordered that the orders and judgment are affirmed, with costs.