Yellow Book Sales & Distrib. Co., Inc. v Cognetti

[*1] Yellow Book Sales & Distrib. Co., Inc. v Cognetti 2012 NY Slip Op 50580(U) Decided on April 2, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 2, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MOLIA, J.P., LaCAVA and IANNACCI, JJ
2010-2364 N C.

Yellow Book Sales and Distribution Company, Inc., Respondent,

against

Ralph Cognetti Doing Business as MEVEC & COGNETTI, Appellant.

Appeal from a judgment of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), entered April 12, 2010. The judgment, entered pursuant to an order granting plaintiff's motion for summary judgment on the complaint and for the dismissal of defendant's counterclaims, awarded plaintiff the principal sum of $6,217.29.

ORDERED that the judgment is reversed, without costs, the order granting plaintiff's motion for summary judgment on the complaint and for the dismissal of defendant's counterclaims is vacated and plaintiff's motion is denied.

Plaintiff commenced this action to recover the unpaid portion of a contract for advertising services, and defendant counterclaimed to recover the amount paid, based upon a theory of fraud. Defendant appeals from a judgment entered pursuant to an order of the District Court which granted plaintiff's motion for summary judgment on the complaint and for the dismissal of defendant's counterclaims. [*2]

It is undisputed that the parties had entered into the subject contract for advertising services and that defendant has not paid plaintiff the entire sum due under the contract. However, we disagree with the District Court's determination that defendant's allegations of fraud are insufficient to raise a triable issue of fact.

Accordingly, the judgment is reversed, the order granting plaintiff's motion for summary judgment on the complaint and for the dismissal of defendant's counterclaims is vacated and plaintiff's motion is denied.

Molia, J.P., LaCava and Iannacci, JJ., concur.
Decision Date: April 02, 2012