In Michael B. Shulman & Assoc., P.C. v Canzona, 201 AD3d 716, 717-18 [2d Dept 2022], the court determined that an account stated cause of action was partially granted in the attorney’s favor. The court held:
” ‘An account stated is an agreement between parties, based upon their prior transactions, with respect to the correctness of the account items and the specific balance due’ ” (Bank of Am., N.A. v Ball, 188 AD3d 974, 974 , quoting Citibank [South Dakota], N.A. v Abraham, 138 AD3d 1053, 1056 ). “Although an account stated may be based on an express agreement between the parties as to the amount due, an agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account” (Citibank [South Dakota], N.A. v Abraham, 138 AD3d at 1056).
Here, the plaintiff established, prima facie, that, with the exception of the final invoice, dated March 10, 2014, the defendant received the invoices and made partial payments (see Stardom Brands, LLC v S.K.I. Wholesale Beer Corp., 172 AD3d 1266, 1268 ; Lavalle v Coholan Family, LLC, 167 AD3d 1444, 1444 ). As to the March 10, 2014 invoice, however, the record establishes that defendant promptly objected in writing and withheld payment.
In opposition, the defendant asserted that he made certain payments based only on the plaintiff’s threats that work on the case would cease if he did not, corroborated by copies of written messages sent to the defendant by the plaintiff in September 2013. In addition, the defendant testified regarding specific oral objections he made to the invoice dated August 2, 2013, during a phone call with the plaintiff. This evidence was sufficient to raise a triable issue of fact as to whether the defendant’s September 2013 payments constituted an agreement to pay the balance stated in the August 2, 2013 invoice (see Wand, Powers & Goody, LLP v Yuliano, 144 AD3d 1017, 1018 ; Boies, Schiller & Flexner LLP v Modell, 129 AD3d 533, 534 ; Elmo Mfg. Corp. v American Innovations, Inc., 44 AD3d 703, 704 ; 1000 N. of N.Y. Co. v Great Neck Med. Assoc., 7 AD3d 592, 593 ). Accordingly, the Supreme Court properly denied that branch of the plaintiff’s motion which was for summary judgment on the second cause of action insofar as it related to the invoice dated March 10, 2014, on the ground that the plaintiff failed to meet its prima facie burden, and insofar as it related to the invoice dated August 2, 2013, on the ground that the defendant raised a triable issue of fact. However, the court have should awarded the plaintiff summary judgment on the second cause of action insofar as it related to the remaining invoices (see Fross, Zelnick, Lehrman & Zissu, P.C. v Geer, 120 AD3d 1157 ).
Richard A. Klass, Esq.
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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.comcreate new email with any questions.
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