Opinion
11-01-2016
GPI ENTERTAINMENT, LLC, Plaintiff–Appellant, v. AVIV FACADE SOLUTIONS, Defendant, West Side Windows, Defendant–Respondent.
Gallo Vitucci Klar, LLP, New York (Kimberly A. Ricciardi of counsel), for appellant. Smith, Buss & Jacobs, LLP, Yonkers (Ryan P. Kaupelis of counsel), for respondent.
Gallo Vitucci Klar, LLP, New York (Kimberly A. Ricciardi of counsel), for appellant.
Smith, Buss & Jacobs, LLP, Yonkers (Ryan P. Kaupelis of counsel), for respondent.
SWEENY, J.P., ACOSTA, ANDRIAS, MANZANET–DANIELS, WEBBER, JJ.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about June 25, 2015, which denied plaintiff's motion for partial summary judgment dismissing defendant West Side Windows' counterclaims for account stated and quantum meruit, unanimously affirmed, without costs.
Plaintiff failed to make a prima facie showing of its entitlement to summary judgment dismissing defendant's counterclaim for account stated, as it submitted no evidence, testimonial or otherwise, that it did not receive the invoices at issue, and issues of fact exist as to whether plaintiff's protests regarding defendant's work, including the commencement of this action, related to any such invoice or were made in a reasonable time (see Bartning v. Bartning, 16 A.D.3d 249, 250, 791 N.Y.S.2d 541 [1st Dept.2005] ; Fleming v. Vassallo, 43 A.D.3d 278, 278–279, 840 N.Y.S.2d 348 [1st Dept.2007] ). The court also properly denied plaintiff's motion for summary judgment dismissing defendant's quantum meruit claim, as issues of fact exist regarding whether defendant had agreed to adopt the contract of its predecessor and whether defendant performed any services not covered by that contract (see Parker
Realty Group, Inc. v. Petigny, 14 N.Y.3d 864, 865, 903 N.Y.S.2d 325, 929 N.E.2d 387 [2010] ; Geraldi v. Melamid, 212 A.D.2d 575, 576, 622 N.Y.S.2d 742 [2d Dept.1995] ; Nemeroff v. Coby Group, 54 A.D.3d 649, 651, 864 N.Y.S.2d 25 [1st Dept.2008] ).
As plaintiff has not met its burden, this Court need not address the discovery concerns raised by defendant as a basis for denial of the motion.
We have considered plaintiff's remaining arguments and find them unavailing.