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• Title: Milton Milstein Et Al. v. Montefiore Club Buffalo
• Author : Supreme Court of New York
• Release Date : January 06, 1975
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 67 KB

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[47 A.D.2d 805 Page 805] Memorandum: Plaintiffs-appellants rendered architectural services for defendant-respondent over a period of years in connection with construction at two club houses owned by respondent. During the performance of the services and subsequent thereto respondent paid appellants $12,466.88 on account of services for the first work performed by appellants and $77,080.77 for later services. After respondent's failure to pay balances claimed by appellants this action was instituted. The complaint alleges three causes of action: the first for work performed at 806 Delaware Avenue for which plaintiffs claimed a balance due of $10,468.63; the second for $3,727.59 for interest accrued on the alleged balances on that work; and the third for $888.38 for the alleged balance due for services rendered at 417 Delaware Avenue. Respondent's answer contains a general denial and further alleges the Statute of Frauds as a defense to the three causes of action, legal insufficiency as to the second cause of action and the Statute of Limitations as a defense to the third. The answer also asserts two counterclaims, one for alleged negligent work and the second for membership dues allegedly owed to the club by appellant Milstein. Special Term denied appellants' motion for summary judgment on the three causes of action on the ground that the answer raised triable issues of fact. Appellant Milstein's affidavit in support of the motion has annexed to it five documents showing payments made on account from March 3, 1971 to April 4, 1973, the interest which had accrued on unpaid balances and, most importantly, a letter from respondent's treasurer stating that We regret the inability to pay you the full amount that is due. The letter further promised additional payments on May 15th and stated that the club was in regotiations at present to pay the entire balance; however, we beg your indulgence. Respondent's affidavit presents no evidentiary fact in opposition to appellants' motion. The repetition of conclusory statements, as contained in respondent's affidavit, does not preclude the granting of summary judgment (Indig v. Finkelstein, 23 N.Y.2d 728, 729). Appellants having made out a prima facie case the burden was upon respondent to rebut by evidentiary facts and to demonstrate that there exists a triable issue of ultimate fact (Green v. Irwin, 28 A.D.2d 971, 972; Steingart Assoc. v. Sandler, 28 A.D.2d 801, 802-803). The movants' affidavit and documents establish a classical situation for an account stated. Respondent made payments over a period of 14 months without a word of complaint [47 A.D.2d 805 Page 806]

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