Practice point: The Appellate Division affirmed denial of plaintiff's motion for partial summary judgment dismissing defendant's counterclaims for account stated and quantum meruit.
Plaintiff failed to make a prima facie showing of its entitlement to judgment as a matter of law, as it submitted no evidence, testimonial or otherwise, that it did not receive the invoices at issue. In addition, there are issues of fact 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. On the quantum meruit claim, there are issues of fact regarding whether defendant had agreed to adopt the contract of its predecessor and whether defendant performed any services not covered by that contract.
Student note: As plaintiff did not meet its burden, the court did not address the discovery concerns raised by defendant as a basis for denial of the motion.
Case: GPI Entertainment, LLC v. Aviv Façade Solutions, NY Slip Op 07121 (1st Dep't November 1, 2016)
Here is the decision.
Tomorrow's issue: A motion to vacate an arbitration award.