In this motion for summary judgment pursuant to CPLR §3212, defendant Homeward Bound Services is in the business of entering into assisted living contacts with persons in need of home health care services. Plaintiff, having been hired by defendant, is the actual provider of such services. Plaintiff bills defendant directly for the care defendant's clients receive. The contract between them is an oral one.



Each bill to defendant is by invoice which includes the client's name, the date and time of the services, the individual providing such care. The specific amount of hours worked and the total to be paid to plaintiff are also set forth.



Some bills have been paid; some have not. Plaintiff provides a copy of these invoices and by affidavit states that defendant never once objected to plaintiff's services or invoices until this litigation commenced (see, e.g., American Express v. Williams, 24 AD3d 577).



Turning first to the affirmative defenses contained in defendant's answer dated December 2, 2005, forum non conveniens is not applicable to the case bar. Plaintiff places venue based upon its place of business. Many of defendant's clients reside in New York. The Court can find no nexus to Delaware, where defendant is incorporated, nor to Pennsylvania, other than defendant's place of business is located in that state.



Further, in the over one year and four months since defendant answered the complaint, it never raised the forum or venue issue by making separate application to the Court (Compare, generally, Toro v Gacin, 171 AD2d 1025 with Farra v. Hesseltine, 134 AD2d 788). In any event, the evidence submitted by plaintiff sufficiently demonstrates that both venue and forum are properly placed in Nassau County, New York (Business Corporation Law §1314(a); CPLR §327(a); see Martin v. Meith, 35 NY2d 414).

Regarding defendant's affirmative defense that the parties agreed to have Pennsylvania law govern,

choice of law clauses are not to be confused with choice of forum clauses (Merrill Lynch v. [*2]McLeod, 208 AD2d 81).

ALL METRO AIDES, INC.

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Assuming arguendo that the parties agreed that Pennsylvania law would apply to any action, including the instant one, defendant has made no attempt in its opposition to argue said law to demonstrate that the conclusions of this Court would be different if Pennsylvanian law was applied.



Finally, with reference to the affirmative defenses of waiver, estoppel, res judicata and/or laches,

although CPLR §3018(b) and §3026 allow for liberally pleaded defenses, since the Court views plaintiff's application only in the context of a motion to dismiss on summary judgment, the defenses must be presented in more concrete terms.



Plaintiff asserts that these affirmative defenses are totally inapplicable to the case at bar. In opposition, defendant principal's affidavit simply refers to defendant's answer and the attorney's brief in response to the motion.



Case law holds that without first hand knowledge, an attorney's affidavit has no probative value (Siegel, New York Practice, Fourth Edition, §281). A memorandum of law is even more removed in probative force and counsel's vague offerings cannot successfully be bootstrapped to defendant's skeletal affidavit.



This is especially true in defenses such as estoppel and res judicata that are, to a great extent, based upon law and are not solely within the province of plaintiff's knowledge. Defendant's evidentiary failure by overlooking its own burden leads the Court to conclude as a matter of law the defenses raise no genuine issue of fact (e.g., Banasik v. Reed Prentice Division, 324 AD2d 746, aff'd 28

NY2d 770).



The same holds true for defendant's overreaching defense that the reason for failing to pay some invoices was because plaintiff did not perform its services to defendant's satisfaction.



Defendant's corporate verification is based upon the books and records kept in the ordinary course of defendant's business. Defendant fails, however, not only to produce any such records that are in its sole possession but also any documents with reference to dissatisfaction of the treatment rendered to its own clients (American Express v. Williams, supra).



Plaintiffs verified complaint at Paragraph 15 clearly delineates the invoices that were not paid [*3]or were only partially paid and copies of the invoices are annexed to the complaint. As noted above, the business records are again incorporated into plaintiff's motion (CPLR §4518).



Since plaintiff's burden of proof for summary judgment has been sufficiently demonstrated and defendant has failed in its attendant burden to set forth some evidence to raise a genuine material issue of fact, plaintiff's motion for summary judgment on an account stated is granted.

Plaintiff is awarded judgment against defendant in the amount of $46,069.95 with interest from October 25, 2005 plus costs and disbursements.

Dated:April 16, 2007................................................................J.S.C.