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You are here: Home1 / Account Stated2 / Procedure Re: “Improper Service” Affirmative Defense and Criteria for “Ac...
Account Stated, Civil Procedure

Procedure Re: “Improper Service” Affirmative Defense and Criteria for “Account Stated” Pleadings

The Fourth Department explained the law with respect to dismissal based on the “improper service” affirmative defense, and the pleading requirements for an “account stated:”

Because defendants failed to move to dismiss the complaint against them on that ground within 60 days after serving their respective answers, which set forth objections to service (see CPLR 3211 [e]), they thereby waived those objections…. As plaintiff further contends, defendants did not demonstrate the requisite “undue hardship” to justify an extension of defendants’ time for moving to dismiss the action on the ground of improper service (CPLR 3211 [e…).* * *

…[W]e reject plaintiff’s related contention that it is entitled to judgment on the account stated cause of action pursuant to CPLR 3016 (f). That statute provides in relevant part that, where the plaintiff in an action involving the “performing of labor or services” sets forth “the items of his [or her] claim and the reasonable value or agreed price of each,” the defendant, in his or her answer, must “indicate specifically those items he [or she] disputes.” Plaintiff contends that it is entitled to judgment because defendants’ answers set forth only general denials…. Here, however, plaintiff’s itemization of the charges fails to meet the specification standards of CPLR 3016 (f). Although plaintiff contends that defendants made a partial payment … toward the amount due, plaintiff failed to specify to which of the invoice items defendants’ payment was applied …. As a result, “the [complaint] ‘did not trigger a duty on the part of [defendants] to specifically dispute each item’ ” ….  Anderson & Anderson, LLP…v Incredible Investments…425, 4th Dept, 6-14-13

 

June 14, 2013
Tags: Fourth Department
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THE TWO-JUSTICE DISSENT ARGUED THAT THE MAJORITY ERRONEOUSLY AFFIRMED THE DENIAL OF THE MOTION TO VACATE THE CONVICTION ON A GROUND NOT RELIED UPON BY THE MOTION COURT (FOURTH DEPT). ​
ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT).
QUESTIONS OF FACT WHETHER PLAINTIFF’S SON’S INVOLVEMENT IN A DRAG RACE PRECLUDED RECOVERY FOR HIS DEATH IN AN ACCIDENT (FOURTH DEPT).
PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT CONTRACTOR CREATED AN UNREASONABLE RISK OF HARM WHEN INSTALLING A FLOOR AND THEREFORE OWED A DUTY TO PLAINTFF, HOWEVER THE DEFECT WAS TRIVIAL AS A MATTER OF LAW.
Child Support Awarded to Wife Even though Husband Awarded Sole Custody; Residency Shared Equally/Husband Has Much Higher Income than Wife
WHERE A MOTION TO VACATE A CONVICTION IS BASED UPON EVIDENCE OUTSIDE THE RECORD AND EVIDENCE IN THE RECORD, ALL OF THE EVIDENCE IS ADMISSIBLE IN THE HEARING ON THE MOTION; COUNTY COURT SHOULD NOT HAVE RESTRICTED THE PRESENTATIOIN OF DEFENDANT’S ALLEGATIONS OF INEFFECTIVE ASSISTANCE TO ONLY THOSE WHICH WERE OUTSIDE THE RECORD (FOURTH DEPT).
NEGLIGENT HIRING AND SUPERVISION AND PRIMA FACIE TORT CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED, NO ALLEGATION EMPLOYEES WERE ACTING OUTSIDE THE SCOPE OF EMPLOYMENT, NO ALLEGATION MALICE WAS DEFENDANT’S SOLE MOTIVATION (FOURTH DEPT).
IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT). ​

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