| Bourdeau Bros., Inc. v Bennett |
| 2010 NY Slip Op 04908 [74 AD3d 1542] |
| June 10, 2010 |
| Appellate Division, Third Department |
| Bourdeau Bros., Inc., Respondent, v Jeffrey Bennett,Appellant. |
—[*1] O'Connell & Aronowitz, Plattsburgh (Erin R. Mindoro of counsel), for respondent.
Malone Jr., J. Appeal from an order of the Supreme Court (McGill, J.), entered March 5,2009 in Clinton County, which granted plaintiff's motion for summary judgment.
Plaintiff commenced this action to recover money allegedly owed on an account bydefendant for goods that plaintiff had delivered to him. In defendant's pro se answer, he deniedthe existence of the account and moved to dismiss the complaint. Supreme Court grantedplaintiff's subsequent motion for summary judgment, and defendant now appeals.
In supportof its summary judgment motion, plaintiff produced admissible proof to establish that defendanthad ordered and accepted the delivery of goods from plaintiff but that he had not made fullpayment on his account, despite the demand for such by plaintiff. Plaintiff also produceddocuments that established that defendant acknowledged the balance owed to plaintiff and thathe had more than once stated an intention to make full payment on the account. This proof wassufficient to satisfy plaintiff's burden as the proponent of the motion for summary judgment, anddefendant's submissions in opposition failed to raise a genuine triable issue of fact (seeAlvarez v New York City Hous. Auth., 295 AD2d 225, 226 [2002]; Tobron Off.Furniture Corp. v King World Prods., 161 AD2d 355, 357 [1990]). Although defendantapparently attempted to invoke the statute of frauds, that affirmative defense is waived where, ashere, it was not pleaded in the answer (see CPLR 3018 [b]; 3211 [e]). In any event, it isinapplicable here given defendant's undisputed acceptance and receipt of the goods (seeUCC 2-201 [3] [b], [c]; [*2]Pae v Chul Yoon, 41 AD3d 681, 682 [2007]).Accordingly, Supreme Court properly granted summary judgment to plaintiff.
Defendant's remaining contentions have been considered and found to be unpersuasive.
Cardona, P.J., Mercure, Lahtinen and Egan Jr., JJ., concur. Ordered that the order isaffirmed, without costs.