CASTLE OIL CORPORATION v. BOKHARI (2008)

In an action, inter alia, to recover damages for breach of contract and for an account stated, the defendant appeals from a judgment of the Supreme Court, Westchester County (Smith, J.), entered January 25, 2007, which, upon an order of the same court dated January 23, 2007, granting the plaintiff's motion for summary judgment, is in favor of the plaintiff and against him in the principal sum of $21,045.   The notice of appeal from the order dated January 23, 2007, is deemed to be a notice of appeal from the judgment entered January 25, 2007 (see CPLR 5512[a] ).

ORDERED that the judgment is affirmed, with costs.

 The plaintiff made a prima facie showing of its entitlement to judgment as a matter of law on its breach of contract cause of action by tendering admissible evidence that it delivered oil and provided services to the defendant, for which the defendant did not pay (see Boise Cascade Off. Prods. Corp. v. Gilman & Ciocia, Inc., 30 A.D.3d 454, 816 N.Y.S.2d 374;  Becker v. Shore Drugs, 296 A.D.2d 515, 745 N.Y.S.2d 492;  Neuman Distribs. v. Falak Pharm. Corp., 289 A.D.2d 310, 311, 734 N.Y.S.2d 221;  Drug Guild Distribs. v. 3-9 Drugs, 277 A.D.2d 197, 198, 715 N.Y.S.2d 442).   The plaintiff also established its prima facie entitlement to judgment as a matter of law on its cause of action for an account stated by demonstrating that the defendant failed to object to the invoices that the plaintiff sent to him in the ordinary course of business (see American Express Centurion Bank v. Williams, 24 A.D.3d 577, 578, 807 N.Y.S.2d 612;  Casa Redimix Concrete Corp. v. MacQuesten Gen. Contr., Inc., 14 A.D.3d 641, 642, 788 N.Y.S.2d 619;  Neuman Distribs. v. Jacobi Med. Ctr., 298 A.D.2d 568, 751 N.Y.S.2d 258).   The defendant's affidavit in opposition to the motion for summary judgment was insufficient to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Boise Cascade Off. Prods. Corp. v. Gilman & Ciocia, Inc., 30 A.D.3d at 455, 816 N.Y.S.2d 374;  Neuman Distribs. v. Jacobi Med. Ctr., 298 A.D.2d at 569, 751 N.Y.S.2d 258;  Becker v. Shore Drugs, 296 A.D.2d at 515, 745 N.Y.S.2d 492;  Drug Guild Distribs. v. 3-9 Drugs Inc., 277 A.D.2d at 198, 715 N.Y.S.2d 442).

The defendant's remaining contentions are without merit.