Power Brake Serv. Inc. v Hylan Elec. Contr. Inc.

[*1] Power Brake Serv. Inc. v Hylan Elec. Contr. Inc. 2005 NY Slip Op 50086(U) Decided on February 1, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 1, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2003-1752 K C

Power Brake Service Inc., Appellant,

against

Hylan Electrical Contracting Inc. and THE HYLAN GROUP INC., Respondents.

Appeal by plaintiff from an order of the Civil Court, Kings County (B. Balter, J.), entered November 14, 2003, which denied its motion for partial summary judgment.

Order unanimously affirmed without costs.

Plaintiff brought an action to recover the sum of $16,092.73, premised on theories of breach of contract and account stated. It subsequently moved for partial summary judgment in the amount of $15,804.61, based upon invoices establishing charges for items delivered to defendants, which invoices were allegedly retained without objection by defendants.

CPLR 3212 (e) authorizes the court to grant partial summary judgment as to separate causes of action as well as to part of a single cause of action, so long as the portion upon which summary judgment is granted can be logically separated from the part upon which it is denied (see Siegel, NY Prac § 285, at 446 [3d ed]). Although defendants, in their opposition papers, conceded that they owed plaintiff $5,917.37, it is unclear to which of said invoices the conceded amount pertains, and therefore, which of the invoices remain in dispute. Since severance of the remaining amount due may not be neatly accomplished, and as there is a triable issue of fact as to the total amount due, summary judgment was properly denied by the court below. [*2]
Decision Date: February 01, 2005