Monday, July 31, 2017

COMMERCIAL LITIGATION - ACCOUNT STATED



Caring Professionals, Inc. v Landa, 2017 NY Slip Op 05803, Decided on July 26, 2017 Appellate Division, Second Department:

"An account stated is an agreement, express or implied, between the parties to an account based upon prior transactions between them with respect to the correctness of account items and a specific balance due on them which is independent of the original obligation (see Clean Earth of N. Jersey, Inc. v Northcoast Maintenance Corp., 142 AD3d 1032, 1035; Citibank [S.D.], N.A. v Brown-Serulovic, 97 AD3d 522, 523). An essential element of an account stated is that the parties came to an agreement with respect to the amount due (see Episcopal Health Servs., Inc. v POM Recoveries, Inc., 138 AD3d 917, 919; Cameron Eng'g & Assoc., LLP v JMS Architect & Planner, P.C., 75 AD3d 488, 489).

Upon reargument, the Supreme Court properly determined that the plaintiff failed to make a prima facie showing of its entitlement to judgment as a matter of law on the cause of action to recover on an account stated. The plaintiff's evidentiary submissions did not establish that the parties came to an agreement with respect to the amount of the balance due (see Raytone Plumbing Specialties, Inc. v Sano Constr. Corp., 92 AD3d 855, 856)."

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