Fleet Credit Corp. v. Harvey Hutter & Co., Inc.

• Decision Date: 08 August 1994
• Citation: Fleet Credit Corp. v. Harvey Hutter & Co., Inc., 615 N.Y.S.2d 702, 207 A.D.2d 380 (N.Y. App. Div. 1994)
• Court: New York Supreme Court — Appellate Division
• Parties: FLEET CREDIT CORPORATION, etc., Respondent, v. HARVEY HUTTER & CO., INC., et al., Appellants.

Page 702

615 N.Y.S.2d 702

207 A.D.2d 380

FLEET CREDIT CORPORATION, etc., Respondent, v. HARVEY HUTTER & CO., INC., et al., Appellants.

Supreme Court, Appellate Division Second Department.

Aug. 8, 1994.

John J. Gochman, Croton-on-Hudson, for appellants.

Kleinman, Saltzman & Goodfriend, West Nyack (Garry M. Bolnick on the brief), for respondent.

Before THOMPSON, J.P., and BALLETTA, KRAUSMAN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover the balance due under two leases, the defendants appeal from a judgment of the Supreme Court, Westchester County (Nicolai, J.), entered December 1, 1992, which, upon an order of the same court, dated October 24, 1992, granting the plaintiff's motion for summary judgment, is in favor of the plaintiff and against them in the principal sum of $17,495.55, and which awarded the plaintiff attorneys' fees in the sum of $4,373.89.

ORDERED that the judgment is modified, by deleting the provision thereof which awarded the plaintiff attorneys' fees; as so modified, the judgment is affirmed, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Westchester County, for an evidentiary hearing on the issue of the reasonableness of the attorneys' fees and for the entry of an appropriate amended judgment in accordance herewith.

Contrary to the defendants' contention, the plaintiff satisfied its initial burden of coming forward with admissible evidence to support its motion for summary judgment by submitting the affidavit of its accounts receivable manager, together with documentary evidence including the verified pleadings, the subject leases, and two statements of account reflecting the amount claimed to be due and owing (see, Grimm Building Material Company, Inc. v. Russ Freeman Excavating, Inc., 194 A.D.2d 857, 598 N.Y.S.2d 401). The burden thus shifted to the defendants to demonstrate the existence of a triable issue of fact warranting denial of the motion (see, CPLR 3212[b]; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 390 N.E.2d 298; Lennox Industries, Inc. v. T.M. Bier & Associates, Inc., 201 A.D.2d 539, 609 N.Y.S.2d 816), and the defendants' unsubstantiated claim that the leased computers and software equipment, which the corporate defendant had retained for nearly four years, did not function as expected, was insufficient to preclude summary judgment (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572; Grimm...