Boise Cascade Off. Prods. Corp. v Gilman & Ciocia, Inc.

2006 NY Slip Op 04790

Decided on June 13, 2006

Appellate Division, Second Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 13, 2006
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
ANITA R. FLORIO, J.P.
THOMAS A. ADAMS
DANIEL F. LUCIANO
STEVEN W. FISHER, JJ.
2005-01158 DECISION & ORDER






Ted H. Finkelstein, Poughkeepsie, N.Y., for appellant.
Kleinman, Saltzman & Bolnick, P.C., New City, N.Y. (Garry
M. Bolnick of counsel), for
respondent.

In an action to recover payment for goods sold and delivered, the defendant appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated January 12, 2005, which granted the plaintiff's motion for summary judgment and to strike its counterclaim.

ORDERED that the order is affirmed, with costs.

The plaintiff established its prima facie entitlement to judgment as a matter of law by tendering evidence that, between July 18, 2003, and November 20, 2003, it sold and delivered goods to the defendant in the amount of $25,212.73, which the defendant accepted but did not pay for (see Neuman Distribs. v Falak Pharmacy Corp., 289 AD2d 310; Schneider Fuel Oil v DeGennaro, 238 AD2d 495, 495-496). In opposition, the defendant failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562; Neuman Distribs. v Jacobi Med. Ctr., 298 AD2d 568). Specifically, the affidavit of the defendant's Chief Accounting Officer, claiming that the plaintiff overcharged the defendant for certain frequently used items, was unsubstantiated, conclusory, and insufficient to raise a triable issue of fact (see Becker v Shore Drugs, 296 AD2d 515; Neuman Distribs. v Falak Pharmacy Corp., supra).

The defendant's remaining contentions are without merit.[*2]
FLORIO, J.P., ADAMS, LUCIANO and FISHER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court