Beckman Instruments, Inc. v. Cohoes Memorial Hospital

— Appeal (1) from an order of the Supreme Court at Special Term (Kahn, J.), entered September 21, 1983 in Albany County, which granted plaintiff’s motion for summary judgment, and (2) from the judgment entered thereon. 11 Defendant seeks to set aside the judgment granted plaintiff on the ground that plaintiff did not set forth proof of an account stated as a matter of law. Plaintiff sought $16,614 on an account stated for rental incurred for hospital instruments and equipment. The contract documents provided in support thereof are not legible and contain alterations on the face thereof, making it impossible to decipher the terms of the contract of rental between the parties. Additionally, the affidavits submitted in support of the motion do not allege that statements of account were rendered to defendant which were not objected to. Defendant’s affidavits contain denials of receipt of any statements and deny that defendant entered into any rental agreement under the terms alleged by plaintiff. Defendant further avers that it demanded that plaintiff remove the equipment from the premises, that plaintiff failed to do so and that defendant is entitled to storage fees as a result thereof. 11 This matter is not ripe for summary judgment. Plaintiff has failed to state a cause of action for an account stated. To prevail, plaintiff must have shown that regular statements were rendered to defendant which it failed to contest. Having failed to so allege and in the face of defendant’s denial of receipt thereof, and based also on the other factual issues raised by defendant, a grant of summary judgment is precluded. 11 Order and judgment reversed, on the law, with costs, and motion denied. Mahoney, P. J., Weiss, Mikoll, Yesawich, Jr., and Levine, JJ., concur.