Hull v. City of North Tonawanda
| Decision Date | 30 April 2004 |
| Docket Number | CA 03-02476. |
| Citation | 2004 NY Slip Op 03335,6 A.D.3d 1142,775 N.Y.S.2d 656 |
| Parties | ROBERT K. HULL, Appellant, v. CITY OF NORTH TONAWANDA, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Appeal from an order of the Supreme Court, Niagara County (Amy J. Fricano, J.), entered March 5, 2003. The order, insofar as appealed from, denied that part of plaintiff's motion for summary judgment on the second cause of action seeking damages based on an account stated.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Supreme Court properly denied that part of plaintiff's motion seeking summary judgment on the second cause of action based on an account stated. Plaintiff commenced this action seeking payment for services he rendered as a hearing officer in a proceeding brought pursuant to Civil Service Law § 75. Plaintiff's own proof in support of the motion establishes that, when defendant was contacted for payment, defendant complained that plaintiff had charged defendant for time spent correcting the hearing transcript. "There can be no account stated where ... any dispute about the account is shown to have existed" (Abbott, Duncan & Wiener v Ragusa, 214 AD2d 412, 413 [1995]). Because plaintiff failed to establish the absence of any dispute about the account and thus did not meet his initial burden, we do not address the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Present — Pigott, Jr., P.J., Green, Wisner, Scudder and Gorski, JJ.
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...Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 (1985) (citation omitted). See also, Hull v. City of North Tonawanda, 6 A.D.3d 1142, 1142–43, 775 N.Y.S.2d 656 (4th Dept.2004). When deciding a summary judgment motion, the evidence must be viewed in the light most favorable to the ......
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