SHOWCASE SALES GALLERY INC v. EMPIRE NATIONAL LEASING INC (2002)

Supreme Court erred in granting that part of plaintiff's motion for partial summary judgment on the second cause of action for an account stated as against defendant Empire National Leasing, Inc. (Empire) and striking Empire's answer.   Because the record contains no agreement between plaintiff and Empire setting forth an amount due, plaintiff failed to establish its entitlement to judgment as a matter of law on that cause of action (see Erdman Anthony & Assoc. v. Barkstrom, 298 A.D.2d 981, 747 N.Y.S.2d 670).   We further conclude, however, that the court properly denied the cross motion of Empire for summary judgment dismissing the amended complaint against it.   Although Empire's president averred that Empire never entered into an agreement with plaintiff regarding showcases, plaintiff submitted requests for invoices from Empire to plaintiff, raising an issue of fact with respect to its relationship with Empire (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Consequently, we modify the amended judgment by vacating that part of the second decretal paragraph as against Empire, denying that part of plaintiff's motion for partial summary judgment as against Empire and reinstating Empire's answer.

It is hereby ORDERED that the amended judgment so appealed from be and the same hereby is unanimously modified on the law by vacating that part of the second decretal paragraph as against defendant Empire National Leasing, Inc., denying that part of plaintiff's motion for partial summary judgment as against defendant Empire National Leasing, Inc. and reinstating the answer of defendant Empire National Leasing, Inc. and as modified the amended judgment is affirmed without costs.

MEMORANDUM: