Opinion
2001-08225
Argued May 13, 2002.
July 22, 2002.
In an action, inter alia, to recover payment for goods sold and delivered, the defendant appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated April 16, 2001, which granted the plaintiff's motion for summary judgment.
Friedman Harfenist, Lake Success, N.Y. (Steven Jay Harfenist, Heather L. Reulbach, and Neil Torczyner of counsel), for appellant.
Graubard Miller, New York, N.Y. (Edward H. Pomeranz of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., CORNELIUS J. O'BRIEN, GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, JJ.
ORDERED that the order is affirmed, with costs.
The plaintiff established its prima facie entitlement to judgment as a matter of law by submitting invoices, corresponding signed delivery receipts, and an account statement showing an outstanding balance of $57,119.89 (see Neuman Distributors, Inc. v. Falak Pharmacy Corp., 289 A.D.2d 310, 311; Drug Guild Distribs. v. 3-9 Drugs, 277 A.D.2d 197, 198; Riverhead Bldg. Supply, Corp. v. Regine Starr, Inc., 249 A.D.2d 532).
The affidavit of the defendant's president submitted in opposition to the motion was insufficient to raise a triable issue of fact warranting the denial of summary judgment, as the affidavit contained conclusory assertions which failed to refute the sale and delivery of goods and the defendant's non-payment (see Neuman v. Distributors, Inc. v. Falak Pharmacy Corp., supra; Drug Guild Distribs. v. 3-9 Drugs, supra; Riverhead Bldg. Supply, Corp. v. Regine Starr, Inc., supra at 533).
The defendant contends that it was charged for goods that were allegedly returned or never delivered, and that it is entitled to receive a credit. Further, the defendant contends that its claim for credit is an attempt at recoupment. However, the defendant waived its recoupment claim by failing to assert such claim in its answer (see Kivort Steel v. Liberty Leather Corp., 110 A.D.2d 950, 952).
In any event, the defendant's claim for credit is a actually a claim for a set-off, which can only be considered as part of the plaintiff's bankruptcy proceeding pending in Federal Bankruptcy Court (see 11 U.S.C. § 362 [a][7]; Malinowski v. New York State Dept. of Labor, 156 F.3d 131; Neuman Distributors, Inc. v. Falak Pharmacy Corp., supra; Drexel Burnham Lambert v. Terex Corp., 184 A.D.2d 328, 329).
FLORIO, J.P., O'BRIEN, KRAUSMAN and LUCIANO, JJ., concur.