Acoustilog, Inc. v Rosendale

[*1] Acoustilog, Inc. v Rosendale 2005 NYSlipOp 50371(U) Decided on March 23, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 23, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: March 23, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : McCABE, P.J., ANGIOLILLO and COVELLO, JJ.
2004-232 D C

Acoustilog, Inc., Respondent,

against

Donald P. Rosendale, Appellant.

Appeals by defendant from (1) an amended judgment of the Justice Court, Town of Northeast, Dutchess County (P. Singleton-Warren, J.), entered on March 9, 2004, awarding plaintiff the principal sum of $1,082, (2) an order of the same court, entered on December 15, 2003, denying defendant's motion for summary judgment dismissing the complaint, and (3) an order of the same court, entered on March 1, 2004, which denied in part his motion to resettle the judgment.

Appeals from orders entered on December 15, 2003 and March 1, 2004 unanimously dismissed.

Judgment unanimously affirmed without costs.

The appeals from the intermediate orders must be dismissed because the right to appeal directly therefrom terminated with the entry of the amended judgment (see Matter of Aho, 39 NY2d 241 [1976]). The issues raised on appeal from said orders are brought up for review upon the appeal from the amended judgment (see CPLR 5501 [a] [1]). We note that in any event, defendant has not raised an issue on appeal with respect to the March 1, 2004 order.

The court's return establishes that an account stated was created between the parties. Defendant's partial payment of invoices constituted strong evidence of his acknowledgment of the validity of the bills and was an admission of the debt (see Schneider Fuel Oil v DeGennaro, 238 AD2d 495, 496 [1997]). Since an account stated constitutes a separate agreement between the parties that the debt is valid and due (Interman Ind. Prods. v R.S.M. Electron Power, 37 [*2]NY2d 151, 153-154 [1975]), we need not consider the issues raised on appeal with respect to the underlying debt.

Defendant's contention that the court below abused its discretion in denying his application for an adjournment is not preserved for appellate review since the court's return does not address this issue (see Moyle v Bracci, 119 Misc 2d 185, 187 [Delaware County Ct 1983]).
Decision Date: March 23, 2005