Hoffinger Stern & Ross, LLP v Neuman

Hoffinger Stern & Ross, LLP v Neuman 2013 NY Slip Op 06936 Decided on October 24, 2013 Appellate Division, First 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 Official Reports.

Decided on October 24, 2013
Andrias, J.P., Friedman, Acosta, DeGrasse, Freedman, JJ.
10841 113111/09

[*1]Hoffinger Stern & Ross, LLP, Plaintiff-Respondent,

v

Philip Neuman, et al., Defendants-Appellants.




The Griffith Firm, New York (Edward Griffith of counsel), for
appellants.
Law Offices of Stephen R. Stern, P.C., Melville (Stephen R.
Stern of counsel), for respondent.

Appeal from order, Supreme Court, New York County (Louis B. York, J.), entered April 11, 2012, which granted plaintiff's motion for summary judgment on its cause of action for an account stated, deemed appeal from judgment, same court and Justice, entered April 23, 2012 (CPLR 5520[c]), and so considered, said judgment unanimously reversed, on the law, without costs, and the judgment vacated, and plaintiff's motion denied.

In light of the strong policy of resolving disputes on the merits, and in the absence of a claim of prejudice by plaintiff, the court properly considered defendants' opposition to plaintiff's motion, despite the fact that it was served five or six hours after the time to which the parties stipulated (see Green v Mohamed, 275 AD2d 599 [1st Dept 2000]).

Defendants raised an issue of fact whether they objected to the March 5, 2008 invoice that is the sole basis of the account stated cause of action (see Russo v Heller, 80 AD3d 531 [1st Dept 2011]). In correspondence throughout early March 2008, including a letter dated March 6, defendants refer to "the amount allegedly owed," and, from plaintiff's responding correspondence, it appears that plaintiff understood that language as a challenge to the validity of the invoice.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 24, 2013

CLERK