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