| Education Plus, Inc. v Glasser |
| 2013 NY Slip Op 08326 [112 AD3d 1125] |
| December 12, 2013 |
| Appellate Division, Third Department |
| Education Plus, Inc., Doing Business as The FamilyFoundation, Respondent, v Grisel Glasser, Also Known as Grisel Baltazar,Appellant, et al., Defendant. |
—[*1] M.L. Zager, P.C., Monticello (Robert B. Hunter of counsel), forrespondent.
Rose, J.P. Appeal from a judgment of the Supreme Court (Lambert, J.), enteredFebruary 27, 2013 in Delaware County, which partially granted plaintiff's motion forsummary judgment.
After commencing this action to recover an amount owed by defendants inconnection with their child's attendance at plaintiff's school, plaintiff moved for summaryjudgment against defendant Grisel Glasser (hereinafter defendant). Supreme Courtgranted plaintiff's motion on its breach of contract cause of action, and defendantappeals. We now affirm.
Contrary to defendant's argument, plaintiff established its entitlement to summaryjudgment by producing the contract entered into by the parties, an account activity reportreflecting the various charges incurred and payments made by defendants, and anaffidavit from plaintiff's billing manager explaining the computation of the amount duefor services rendered and the applicable finance charges (see George S. May Intl. Co. vThirsty Moose, Inc., 19 AD3d 721, 722 [2005]; Hussey v LeggioAgency, 299 AD2d 690, 691 [2002]). The billing manager's affidavit adequatelyexplained that her knowledge was based upon the books and records that were made andmaintained in the ordinary course of plaintiff's business together with her own personalknowledge of defendants' account (see CPLR 3212 [b]; 4518 [a]; Alvarez vProspect [*2]Hosp., 68 NY2d 320, 324-325 [1986]).Nor does defendant deny that she entered into the contract and failed to pay the amountsincurred. Instead, she contends that plaintiff did not give her full credit for a deposit of$8,910. However, the billing statements submitted by plaintiff reflect that defendantsreceived credit for their deposit minus the nonrefundable enrollment fee of $4,610,which, pursuant to the contract, is nonrefundable if the student does not complete theprogram. Defendant does not dispute that her child left the program early withoutcompleting it. Defendant's remaining contention, that plaintiff falsely identified itself as anot-for-profit corporation, was explained by plaintiff as an inadvertent misstatement onits part. In any event, defendant has not shown how any such misstatement would affectthe validity of the contract entered into between plaintiff and defendants. As defendantfailed to come forward with proof in admissible form raising a triable issue of fact,Supreme Court properly granted the motion for summary judgment on the breach ofcontract cause of action (see Zuckerman v City of New York, 49 NY2d 557, 562[1980]; Convenient Med. Care v Medical Bus. Assoc., 291 AD2d 617, 618[2002]).
Stein, Spain and Garry, JJ., concur. Ordered that the judgment is affirmed, withcosts.