Summary
denying account stated claim where defendant "disputed the amount billed as well as the quality of the work performed"
Summary of this case from Dimare Homestead, Inc. v. Alphas Co. of New YorkOpinion
April 18, 1995
Appeal from the Supreme Court, New York County (Walter Schackman, J.).
Plaintiff failed to demonstrate a right to summary judgment on an account stated theory. An account stated is an account, balanced and rendered, with an assent to the balance either express or implied (Interman Indus. Prods. v R.S.M. Electron Power, 37 N.Y.2d 151, 153). There can be no account stated where no account was presented or where any dispute about the account is shown to have existed (Waldman v Englishtown Sportswear, 92 A.D.2d 833, 836). In this case, the numerous affidavits reaffirmed and resubmitted by defendant in opposition to plaintiff's motion for summary judgment assert, inter alia, that both defendant and/or her former husband, from whom plaintiff sought to collect fees, disputed the amount billed as well as the quality of the work performed on defendant's behalf.
Concur — Murphy, P.J., Rubin, Asch, Williams and Mazzarelli, JJ.