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You are here: Home1 / Account Stated2 / SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED ON PLAINTIFF’S ACCOUNT...
Account Stated, Contract Law

SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED ON PLAINTIFF’S ACCOUNT STATED CAUSE OF ACTION; CRITERIA EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on the account-stated cause of action should have been granted:

Plaintiff established prima facie entitlement to summary judgment on its cause of action for account stated by submitting evidence that it prepared and sent invoices to defendant in the ordinary course of its business; that defendant rendered partial payment, thus confirming that it received the invoices; and that defendant did not timely object to the invoices … .

In opposition, defendant failed to raise a triable issue of fact as to the existence of an account stated. Although the affidavit was submitted by defendant’s principal, it does not assert that defendant never received the invoices. Further, although defendant’s principal stated that defendant had already paid plaintiff the amounts due, she does not assert that defendant timely disputed those amounts. Accordingly, defendant is deemed to be bound by plaintiff’s rendering of the account … . Dape Consulting Inc. v Next Trucking Inc., 2025 NY Slip Op 02128, First Dept 4-10-25

Practice Point: Here defendant stated in an affidavit that it had already paid the amounts due. That claim did not raise a question of fact in this account stated action because defendant did not aver that it timely disputed the amounts due.​

 

April 10, 2025
Tags: First Department
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PLAINTIFF DID NOT ATTACH HIMSELF TO AN AVAILABLE LIFELINE, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).
THE CONTENTS OF A SAFE DEPOSIT BOX CONSTITUTED THE PROPERTY OF JOINT TENANTS WITH RIGHTS OF SURVIVORSHIP, THEREFORE THE CONTENTS ARE AVAILABLE TO SATISFY A JUDGMENT AGAINST ONLY ONE OF THE JOINT TENANTS (FIRST DEPT).
CITY HAD ASSIGNED A CROSSING GUARD TO THE CROSSWALK WHERE INFANT PLAINTIFF WAS STRUCK BY A SCHOOL BUS, THE GUARD HAD CALLED IN SICK THAT DAY, NO SPECIAL RELATIONSHIP BETWEEN THE CITY AND THE PLAINTIFFS, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).
THE EVIDENCE WAS SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF IN THIS LABOR LAW 240(1) FALLING-OBJECT CASE; BRICK WORK WAS BEING DONE ON THE BUILDING ABOVE WHERE PLAINTIFF WAS STANDING AND PLAINTIFF WAS STRUCK BY A FALLING BRICK; THERE WAS NO SAFETY NETTING TO PROTECT AGAINST FALLING OBJECTS (FIRST DEPT).
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