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Bourdeau Bros., Inc. v. Bennett

State of New York Supreme Court, Appellate Division Third Judicial Department


June 10, 2010

BOURDEAU BROS., INC., RESPONDENT,
v.
JEFFREY BENNETT, APPELLANT.

The opinion of the court was delivered by: Malone Jr., J.

MEMORANDUM AND ORDER

Calendar Date: April 28, 2010

Before: Cardona, P. J., Mercure, Lahtinen, Malone Jr. and Egan Jr., JJ.

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 by defendant for goods that plaintiff had delivered to him. In defendant's pro se answer, he denied the existence of the account and moved to dismiss the complaint. Supreme Court granted plaintiff's subsequent motion for summary judgment, and defendant now appeals.

In support of its summary judgment motion, plaintiff produced admissible proof to establish that defendant had ordered and accepted the delivery of goods from plaintiff but that he had not made full payment on his account, despite the demand for such by plaintiff. Plaintiff also produced documents that established that defendant acknowledged the balance owed to plaintiff and that he had more than once stated an intention to make full payment on the account. This proof was sufficient to satisfy plaintiff's burden as the proponent of the motion for summary judgment, and defendant's submissions in opposition failed to raise a genuine triable issue of fact (see Alvarez 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 defendant apparently attempted to invoke the statute of frauds, that affirmative defense is waived where, as here, it was not pleaded in the answer (see CPLR 3018 [b]; 3211 [e]). In any event, it is inapplicable here given defendant's undisputed acceptance and receipt of the goods (see UCC 2-201 [3] [b], [c]; 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 is affirmed, without costs.

20100610

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