Harbor Seafood, Inc. v. Quality Fish Co.

Jun 21, 1993
Versions:194 A.D.2d 713
600 N.Y.S.2d 103
1993 N.Y. App. Div. LEXIS 6457

—In an action, inter alia, to recover damages for goods sold and delivered and on accounts stated, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Murphy, J.), dated January 25, 1991, as denied their cross motion for summary judgment with respect to the first four causes of action asserted in the complaint against the defendant Quality Fish Company, Inc..

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the plaintiffs’ contentions, we find that the Supreme Court properly denied their cross motion for summary judgment with respect to the causes of actions against the defendant Quality Fish Company, Inc. (hereinafter Quality Fish), inasmuch as the affidavit submitted by the defendant Mono Marinello, the president of Quality Fish, in opposition to the plaintiffs’ cross motion constituted sufficient proof by a person having knowledge of the facts to raise several triable issues of fact with respect to the existence of a contractual relationship between the plaintiffs and Quality Fish (see, CPLR 3212 [b]; cf., Zuckerman v City of New York, 49 NY2d 557, 562).

We note that Quality Fish’s failure to specifically dispute the individual items alleged to comprise the plaintiffs’ respective accounts stated is of no import to the Supreme Court’s determination, inasmuch as Quality Fish disputes the entirety of the parties’ alleged dealings rather than the individual contents of the accounts stated (see, CPLR 3016 [f]; Guth Co. v Gurland, 246 App Div 67; cf., Duban v Platt, 23 AD2d 660, affd 17 NY2d 526).

We have examined the plaintiffs’ remaining contention and *714find it to be without merit. Moreover, in light of the foregoing conclusions and the limited scope of this appeal, we need not address the respondents’ remaining contentions. Rosenblatt, J. P., Copertino, Santucci and Joy, JJ., concur.