GPI Entertainment, LLC v Aviv Façade Solutions

GPI Entertainment, LLC v Aviv Fa§ade Solutions 2016 NY Slip Op 07121 Decided on November 1, 2016 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 November 1, 2016
Sweeny, J.P., Acosta, Andrias, Manzanet-Daniels, Webber, JJ.
2082 156610/12

[*1]GPI Entertainment, LLC, Plaintiff-Appellant,

v

Aviv Façade Solutions, Defendant, West Side Windows, Defendant-Respondent.

Gallo Vitucci Klar, LLP, New York (Kimberly A. Ricciardi of counsel), for appellant.

Smith, Buss & Jacobs, LLP, Yonkers (Ryan P. Kaupelis of counsel), for respondent.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about June 25, 2015, which denied plaintiff's motion for partial summary judgment dismissing defendant West Side Windows' counterclaims for account stated and quantum meruit, unanimously affirmed, without costs.

Plaintiff failed to make a prima facie showing of its entitlement to summary judgment dismissing defendant's counterclaim for account stated, as it submitted no evidence, testimonial or otherwise, that it did not receive the invoices at issue, and issues of fact exist as to whether plaintiff's protests regarding defendant's work, including the commencement of this action, related to any such invoice or were made in a reasonable time (see Bartning v Bartning, 16 AD3d 249, 250 [1st Dept 2005]; Fleming v Vassallo, 43 AD3d 278, 278-279 [1st Dept 2007]). The court also properly denied plaintiff's motion for summary judgment dismissing defendant's quantum meruit claim, as issues of fact exist regarding whether defendant had agreed to adopt the contract of its predecessor and whether defendant performed any services not covered by that contract (see Parker Realty Group, Inc. v Petigny, 14 NY3d 864, 865 [2010]; Geraldi v Melamid, 212 AD2d 575, 576 [2d Dept 1995]; Nemeroff v Coby Group, 54 AD3d 649, 651 [1st Dept 2008]).

As plaintiff has not met its burden, this Court need not address the discovery concerns raised by defendant as a basis for denial of the motion.

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 1, 2016

CLERK