SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
February 14, 2011
EMPIRE STATE FUEL CORPORATION, APPELLANT,
2683 MORRIS ASSOCIATES, LLC, RESPONDENT.
Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered February 3, 2009.
Empire State Fuel Corp. v 2683 Morris Assoc., LLC
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports. Decided on February 14, 2011
PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ
The order denied plaintiff's motion for summary judgment.
ORDERED that the order is affirmed, without costs.
The verified complaint in this action alleged that, at the request of defendant's managing agent, plaintiff agreed to sell fuel to defendant and to deliver the fuel to premises owned by defendant, and thereafter opened an account for the delivery of fuel to the premises. The complaint specifically invoked CPLR 3016 (f). Exhibit A, annexed to the complaint, purported to itemize "all deliveries, services, late charges and payments." Exhibit B annexed to the complaint, which was described in the complaint as consisting of copies of monthly statements of account from plaintiff to defendant, actually was comprised of eight invoices, as well as two fuel delivery tickets. Defendant's verified answer consisted of a general denial with affirmative defenses, including assertions that the materials sold by defendant were nonconforming in quality and quantity, but did not specifically address any of the enumerated items contained in Exhibit A to the complaint.
Plaintiff moved for summary judgment pursuant to CPLR 3212 and 3016 (f), arguing that defendant's answer, which failed to respond specifically to the numbered items of plaintiff's Exhibit A, had been insufficient to raise an issue of fact. In opposition, defendant contended, among other things, that the complaint lacked the requisite specificity to invoke CPLR 3016 (f), and that its answer had raised material issues of fact as to the quantity, quality and reasonable price of the fuel allegedly delivered to defendant by plaintiff, as well as the reasonable value of repairs that plaintiff allegedly performed for defendant. The Civil Court denied plaintiff's motion.
CPLR 3016 (f) permits a plaintiff in an action involving the "sale and delivery of goods, or the performing of labor or services, or the furnishing of materials," to "set forth and number in his verified complaint the items of his claim and the reasonable value or agreed price of each." A list itemizing the claim which is attached to the pleading can satisfy the requirements of the statute (see Cibro Petroleum Prods. v East Schodack Fuel & Contr. Corp., 135 AD2d 947 ; see also CPLR 3014). Where the elements of CPLR 3016 (f) are properly pleaded, the defendant is required in his verified answer to specifically dispute the items on the plaintiff's list (see Summit Sec. Servs., Inc. v Main St. Lofts Yonkers, LLC, 73 AD3d 906 ; Netguistics, Inc. v Coldwell Banker Prime Props., Inc., 23 AD3d 719 ). Failure to make such specific denials constitutes an admission of the schedule's items (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3016:9) and may constitute a sufficient basis for granting summary judgment to the plaintiff (see Netguistics, Inc., 23 AD3d 719).
Here, the complaint alleged only an agreement between plaintiff and defendant's managing agent to "sell and deliver fuel." The itemized statement annexed to the complaint, however, included not only "the items of [plaintiff's] claim and the reasonable value or agreed price of each," but also, apparently, all the items ever allegedly sold or services provided by plaintiff to defendant, and all of defendant's payments to plaintiff. Whereas the sale and delivery of fuel was the only basis specified for relief in the verified complaint, the itemized statement included distinctly different charges: for example, "lube oil," "service call," "plug tube(s)," "welding repair," "boiler tube(s)," "motor," and "compressor." There was no description of the "service" rendered or of the welding repair performed, no indication of the kind or number of plug tubes or boiler tubes provided, and no indication of whether the charges indicated for plug tubes, boiler tubes, motor, and compressor were for purchase alone or for purchase and installation.
As the itemized schedule of plaintiff's claim did not fully conform to the statutory mandate, defendant's duty to specify in its answer which of the items of plaintiff's claim it disputed and the nature of its dispute was not triggered (see CPLR 3016 [f]; Slavenburg Corp. v Rudes, 86 AD2d 517 ). Accordingly, defendant's failure to comply with the dictates of CPLR 3016 (f) did not compel an award of summary judgment to plaintiff, and, thus, the order of the Civil Court is affirmed.
Pesce, P.J., and Steinhardt, J., concur.
Golia, J., dissents in a separate memorandum.
Golia, J., dissents and votes to reverse the order and grant plaintiff's motion for summary judgment, in the following memorandum:
I agree with the majority in its legal analysis that a plaintiff can fully satisfy the requirements of CPLR 3016 (f) if the plaintiff "set[s] forth and number[s] in his verified complaint the items of his claim and [the] reasonable value or agreed price of each," by attaching an itemized list, and that a defendant's "[f]ailure to make . . . specific denials constitutes an admission of the schedule's items". I also agree with the majority's factual determination that this defendant "fail(ed) to comply with the dictates of CPLR 3016 (f)".
My dissent, however, turns on the finding by the majority that "the itemized schedule of plaintiff's claim did not fully conform to the statutory mandate" in that there was insufficient specificity. It is this conclusion with which I disagree.
The itemized schedule that was annexed to the complaint provided the date the goods and/or services were provided; the numbers of the invoices that were generated and sent to plaintiff; an indication of the particular goods or services provided, such as "Fuel Delivery" or "Welding Repair"; the prices for the items or services as well as the sales tax charged; and the total amount billed for each invoice. This schedule also included a list of payments that were made by defendant, the dates of the payments, the amounts of the payments and the invoice numbers for which the payments were made.
In this regard, it is interesting to note that the payments made by defendant were in the exact amount, to the penny, of the prices set forth in particular invoices. This applies to invoices regarding services performed as well as fuel deliveries made. It is therefore very clear that defendant was well aware of what the charges were for and accepted the validity of such charges. Defendant was not simply making payments "on account."
Indeed, a careful review of the case of Cibro Petroleum Prods. v East Schodack Fuel & Contr. Corp. (135 AD2d 947 ), which was cited by the majority, shows that the Appellate Division specifically overruled the trial court's determination that the schedule, annexed to the complaint was insufficient to constitute a proper schedule of goods and services. Instead, the Appellate Division stated, "We find that plaintiff's complaint complied with CPLR 3016 (f) and denial of its motion for summary judgment on that ground was improper" (Cibro Petroleum Prods. at 949). The itemized schedule submitted in this case is even more detailed and specific than that approved by the Appellate Division in Cibro Petroleum Prods.
Accordingly, I dissent and vote to reverse the order of the Civil Court and grant summary judgment to plaintiff. Decision Date: February 14, 2011
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