Jones & Laughlin Steel Corp. v. Excel Steel & Strip Co. , 51 A.D.2d 1052 ( 1976 )

In an action to recover damages (1) for the balance owing for goods sold and delivered and (2) upon an account stated, plaintiff appeals from an order of the Supreme Court, Queens County, dated January 2, 1976, which denied its motion for summary judgment. Order modified, on the law, by deleting the word "denied” from the decretal paragraph thereof, and substituting therefor the following: "granted to the extent that plaintiff is awarded summary judgment on its first cause of action as to the issue of liability and the motion is otherwise denied.” As so modified, order affirmed, with one bill of $50 costs and disbursements, and action remanded to the Supreme Court for an immediate trial as to the issue of damages. No fact findings were presented for review. Plaintiff sold defendant a quantity of steel. Much of the steel was returned; the parties negotiated as to the amount due, but no agreement was reached. Defendant’s attorney, however, wrote plaintiff that the proceeds of a third-party action would be set aside to cover the outstanding balance. Defendant’s president admits that money is due. The only question remaining is the actual amount owing (cf. CPLR 3212, subd [c]). Hopkins, Acting P. J., Cohalan, Damiani, Christ and Titone, JJ., concur.