Bay Ridge Fuel Corp. v 126 Bapaz, LLC

[*1] Bay Ridge Fuel Corp. v 126 Bapaz, LLC 2017 NY Slip Op 51528(U) Decided on November 3, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 3, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., MICHAEL L. PESCE, MARTIN M. SOLOMON, JJ
2016-1938 K C

Bay Ridge Fuel Corp., Appellant,

against

126 Bapaz, LLC and Myerson Management Corp., Also Known as Myerson Management, LLC, Respondents.

Richard A. Rosenzweig, Esq., for appellant. Myerson Management Corp., a/k/a Myerson Management, LLC, respondent pro se (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered June 8, 2016. The order denied plaintiff's motion for the entry of a default judgment in favor of plaintiff in the principal sum of $22,352.92.

ORDERED that the order is reversed, without costs, and plaintiff's motion for the entry of a default judgment in favor of plaintiff in the principal sum of $22,352.92 is granted.

Upon defendants' failure to appear or answer in this action to recover the sum of $22,352.92 for breach of contract based upon defendants' failure to pay for the delivery of fuel oil, and upon an account stated, plaintiff moved for the entry of a default judgment. In an affidavit in support of plaintiff's motion, plaintiff's manager stated that, pursuant to an oral agreement, plaintiff had made oil deliveries for which defendants failed to pay. Plaintiff's manager also stated that plaintiff had sent defendants five invoices for the fuel oil deliveries, which invoices defendants had not disputed. Annexed to the motion papers were the five invoices, attached to a letter dated December 14, 2015, which letter notified defendants of the unpaid invoices for the fuel oil.

By order entered June 8, 2016, the Civil Court denied plaintiff's unopposed motion, finding that the oral agreement "is not particularized" and therefore "it cannot be determined what defendant[s] agreed to." On appeal, plaintiff contends that the Civil Court erred in denying its motion for the entry of a default judgment because plaintiff established the existence of an oral agreement and its breach, as well as an account stated.

Upon a review of the record, we find that plaintiff has made a sufficient showing—based on the conduct of the parties as set forth in plaintiff's manager's affidavit, plaintiff's letter to defendants, and the five invoices—to establish that the parties had agreed to be bound to an oral contract (see generally Bubba Gump Fish & Chips Corp. v Morris, 90 AD3d 592 [2011]; Recon [*2]Car Corp. of NY v Chrysler Corp., 130 AD2d 725, 729 [1987]). In view of the foregoing, and as defendants failed to submit opposition papers, the motion should have been granted.

Accordingly, the order is reversed and plaintiff's motion for the entry of a default judgment in favor of plaintiff in the principal sum of $22,352.92 is granted.

WESTON, J.P., PESCE and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 03, 2017