LaBarba v. Morrell & Co.

—Order, Supreme Court, New York County (Paula Omansky, J.), entered February 27, 1998, granting defendant’s motion for summary judgment to the extent of dismissing plaintiffs cause of action for an account stated and awarding defendant summary judgment as to liability on its first counterclaim seeking damages for plaintiffs breach of the parties’ contract, unanimously affirmed, without costs.

Plaintiff is not entitled to summary judgment upon his cause of action for goods sold and delivered. Since that cause of action was not the subject of motion practice before the IAS Court, plaintiff…