Herbert F. Darling, Inc., Respondent, v. Contegra Corporation, Appellant

Herbert F. Darling, Inc., Respondent, v Contegra Corporation, Appellant. [629 NYS2d 714] [MAJORITY] Judgment unanimously affirmed without costs. Memorandum: The record establishes that Supreme Court properly granted plaintiff’s motion for summary judgment on the second cause of action for an account stated (see, 1 NY Jur 2d, Accounts and Accounting, § 19; see also, Trager Glass & Co. v Statbrook Contr. Corp., 197 AD2d 476; Marino v Watkins, 112 AD2d 511, 512-513; cf., Peterson v IBJ Schroder Bank & Trust Co., 172 AD2d 165). Further, the court did not abuse its discretion in denying defendant’s cross motion for leave to amend the answer to assert a counterclaim against plaintiff. Defendant knew of the facts that form the basis of the proposed amendment before it interposed its original answer, yet it waited, without explanation, until it was faced with plaintiff’s motion for summary judgment on the second cause of action before seeking to interpose the counterclaim (see, Leon v Montano, 119 AD2d 553). (Appeal from Judgment of Supreme Court, Erie County, Joslin, J.—Summary Judgment.) Present—Denman, P. J., Green, Pine, Callahan and Davis, JJ.