Opinion
June 28, 1967
Appeal from an order of Special Term of the County Court, Sullivan County, which granted summary judgment to the plaintiff. The plaintiff, the operator of a printing shop, commenced an action against the appellants on July 11, 1966 to recover the sum of $1,124.78 upon an alleged account stated dated July 1, 1966. The complaint also alleged that the appellants did business as partners and individual owners under the assumed name of the Summit Hotel. The answer consists of a general denial. The affidavit of the plaintiff's bookkeeper, submitted in support of the motion, states that a statement reflecting the said balance was mailed to the Hotel Summit on the first day of each month beginning August 1, 1965 and including July 1, 1966, and that no dispute in connection with the balance owing or the parties to be charged was ever brought to her attention. The affidavit of the president of the plaintiff corporation states: "No objection was made by defendants to this rendering of the account, in fact until an answer was interposed in this action, defendants have never disputed that the above sum was the correct amount owing by them to the plaintiff." The answering affidavit of the appellant, Florence Gordon, denied that Sol Sandler and she did business as partners and individual owners of the Summit Hotel, and states that the Hotel Summit was operated for approximately the last seven years by the F S Hotel Management Co., Inc., under a written lease; that she, therefore, never did business as an individual or as a partner, and all business was conducted by the corporation. This affidavit further states that all payments were made to the plaintiff by corporate checks, and promissory notes were given by the corporation to the plaintiff in payment of its bills. An affidavit by Attorney Michael Altman, apparently plaintiff's attorney on this appeal, alleged a search of the Sullivan County Clerk's office records revealed no lease between the Hotel Summit, Inc., and the F S Management Co., Inc., but did reveal a recorded judgment against defendant Gordon doing business as Summit Hotel. The affidavit of the appellants' attorney, submitted in opposition to the motion, states that he is a stockholder of the F S Hotel Management Co., Inc., which operated the hotel; that he has been a stockholder for approximately seven years; that all purchases were made by the corporation through its officers, the defendants; that payments were made during the last six years by corporate checks; and that certain payments to the plaintiff had been secured by promissory notes of the corporation. The appellants have not submitted any exhibits to show payment to the plaintiff by corporate check or any corporate promissory notes to the plaintiff, nor did they submit any evidence of a lease between Summit Hotel, Inc., and F S Hotel Management Co., Inc. The reply affidavit of Nathan Steingart, the Chairman of the Board of Directors of the plaintiff corporation, states that he was personally involved in all the business transactions herein; that he was not aware of the Summit Hotel being operated by a corporation; that all purchases were made through the defendants; that the defendants did not apprise the plaintiff that they were acting in a representative capacity for a corporation; that he does not recall receiving any corporate checks; that the defendants held themselves out to plaintiff and others as a partnership. In connection with the appellants' contention that the account is in dispute, this affidavit states that the appellant, Florence Gordon, came to his office prior to July 1, 1966 and "stated that she and her partner, the defendant, Sol Sandler, were breaking up their partnership"; that she was requesting all her suppliers to reduce the amount owing by the hotel; that to forego any prolonged hassle, he agreed to reduce the debt to $1,000 if she gave her personal note or notes in that amount; that she handed him two notes in the amount of $500 with interest made by F S Hotel Management Co., Inc., which he refused to accept unless she personally indorsed them, and that under no circumstances would he reduce the debt without such personal indorsement. The appellants contend that there is no account stated, there being no agreement between the parties; that the plaintiff knew the Summit Hotel was operated by the corporation or should have been aware that it was so operated; and that there can be no recovery on a motion for summary judgment where the defendants contend that the merchandise was never delivered. In opposing a motion for summary judgment, once a prima facie showing has been made, it is incumbent upon a defendant to come forward with matters of an evidentiary nature to demonstrate the presence of triable issues. General averments do not suffice. The defendant is required to assemble, lay bare, and reveal his proofs in order to show that his defenses are real and capable of being established upon a trial. ( Di Sabato v. Soffes, 9 A.D.2d 297; Dowdell Co. v. Silverman, 234 App. Div. 362.) On this motion the appellants have failed to establish by sufficient evidence that plaintiff knew or should have known that appellants were doing business as a corporation. ( Special Sections v. Rappaport Co., 25 A.D.2d 896. ) A negative statement that goods were not delivered is not evidence of nondelivery. ( Gravel Prods. Division v. Sunnydale Acres, 10 Misc.2d 323.) The mere rendering of an account does not make it a stated one, but where an account is rendered showing a balance, the party receiving it must, within a reasonable time, examine it and object, if he disputes its correctness. If he omits to do so, he will be deemed by his silence to have acquiesced, and will be bound by it as an account stated, unless fraud, mistake or other equitable considerations are shown. Whether on a given state of facts, the transaction amounts to an account, is a question of law and not of fact. ( Lockwood v. Thorne, 11 N.Y. 170; Bailey v. Robinson Mfg. Co., 60 N.Y.S.2d 225, affd. 270 App. Div. 986.) Appellants have failed to support by sufficient evidence their contention that there are triable issues of fact. Fact issues must be genuine, bona fide, and substantial to require trial and a denial of a motion for summary judgment. ( Leumi Fin. Corp. v. Richter, 24 A.D.2d 855, affd. 17 N.Y.2d 166.) Order and judgment affirmed, with costs. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.