Michael Serrapica, CPA, PLLC v J.A.F. Assoc.
Annotate this CaseDecided on July 25, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-418 K C.
Michael Serrapica, CPA, PLLC, Appellant-Respondent,
against
J.A.F. Associates and JOHN FERRANTI, Respondents-Appellants, -and- JOSEPH FERRANTI, Respondent-Respondent.
Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered November 26, 2010. The order, insofar as appealed from by plaintiff, denied the branch of its motion seeking summary judgment on its claim for $7,042.50 and granted the branches of a cross motion by defendants J.A.F. Associates and John Ferranti seeking summary judgment dismissing that claim. The order, insofar as cross-appealed from by defendants J.A.F. Associates and John Ferranti, granted the branch of plaintiff's motion seeking summary judgment against them on plaintiff's claim for $570 and denied the branches of their cross motion seeking summary judgment dismissing that claim as against them and seeking an award in their favor on their cross claim for contribution and indemnification against defendant Joseph Ferranti.
[*2]
ORDERED that the order is modified by providing that the branch of plaintiff's motion seeking summary judgment against defendants J.A.F. Associates and John Ferranti on plaintiff's claim for $570 is denied; as so modified, the order is affirmed, without costs.
Plaintiff commenced this action on August 25, 2009 to recover the balance due as set forth in invoices dated August 19, 2002 and September 18, 2003, for accounting services that had been rendered to defendant J.A.F. Associates, a partnership, for its benefit and for the benefit of the two individual defendants, the general partners. In its complaint, plaintiff alleged that defendant J.A.F. Associates had hired plaintiff to perform professional accounting services. Beginning in January of 1992, plaintiff began providing those services, including the preparation of books and records, year-end work papers, and/or partnership tax returns. Plaintiff asserted that defendants had failed to pay for these professional accounting services that had been provided during the period of January 2002 through September 2003, in the sum of $7,612.50. Defendants denied liability and asserted affirmative defenses, including the statute of limitations. Defendants J.A.F. Associates and John Ferranti also cross-claimed against defendant Joseph Ferranti for contribution and indemnification.
Plaintiff moved for summary judgment. Defendants J.A.F. Associates and John Ferranti cross-moved for summary judgment dismissing the complaint on the ground that plaintiff's action was barred by the statute of limitations, and for an award in their favor against defendant Joseph Ferranti for contribution and indemnification.
By order entered November 26, 2010, the Civil Court granted plaintiff's motion for summary judgment to the extent of awarding plaintiff $570 plus interest for the services rendered as indicated on a September 18, 2003 invoice, granted the branch of the cross motion by J.A.F. Associates and John Ferranti seeking summary judgment to the extent of dismissing plaintiff's claim for $7,042.50 as indicated on an August 19, 2002 invoice, and denied the branch of the cross motion seeking summary judgment on their cross claim for indemnification and contribution against defendant Joseph Ferranti. Plaintiff appeals from so much of the order as denied the branch of its motion seeking summary judgment on its claim for $7,042.50 and granted the branch of the cross motion seeking summary judgment dismissing that claim. Defendants J.A.F. Associates and John Ferranti cross-appeal from so much of the order as granted the branch of plaintiff's motion seeking summary judgment against them on plaintiff's claim for $570 and denied the branches of their cross motion seeking summary judgment dismissing that claim as against them and seeking an award in their favor on their cross claim for contribution and indemnification against defendant Joseph Ferranti.
J.A.F. Associates was a partnership formed by brothers John Ferranti and Joseph Ferranti. Plaintiff provided accounting services to the partnership at various times during the existence of the partnership. The partnership was dissolved in April 2002, and began the winding-up process. On August 19, 2002, plaintiff issued an invoice in the sum of $7,042.50 for the services that had been rendered between January 1, 2002 and July 31, 2002. Thereafter, plaintiff provided additional services and submitted a second invoice in the sum of $570, dated September 18, 2003, to reflect those subsequent services. On August 25, 2009, plaintiff commenced this action to recover the outstanding balances as reflected on the August 19, 2002 and September 18, 2003 invoices. [*3]
The statute of limitations for causes of action based on an account stated and breach of contract is six years (CPLR 213 [2]). Pursuant to CPLR 206 (d), "in an action based upon a mutual, open and current account, where there have been reciprocal demands between the parties, the time within which the action must be commenced shall be computed from the time of the last transaction in the account on either side." A "mutual" account is "one in which two parties have agreed to a course of dealings in which each periodically furnishes something to the other, each keeping a running account of credits and debits in the expectation that the party in whose favor a balance exists will send the other a bill from time to time" (Siegel NY Prac § 50, at 72 [5th ed]; see Green v Disbrow, 79 NY 1 [1879]).
The motion papers establish that the August 19, 2002 and September 18, 2003 invoices were not part of a mutual, open and current account because the account was not open to a future final balance that was subject to change or reciprocal offsets, given the course of dealings between plaintiff and defendants. Consequently, the six-year statute of limitations was not tolled for the August 19, 2002 invoice. Therefore, the Civil Court correctly ruled that plaintiff had failed to timely commence his action with regard to the August 19, 2002 invoice.
Although the statute of limitations is no bar to plaintiff's $570 claim as set forth in the September 18, 2003 invoice, defendant John Ferranti stated that he had never consented to any contractual arrangement with plaintiff with respect to those services. He asserted that those services had been rendered "solely" for Joseph Ferranti and not for him or J.A.F. Associates. Under the circumstances, defendant John Ferranti raised a triable issue of fact with respect to plaintiff's claim for $570 and, thus, the branch of plaintiff's motion seeking summary judgment as to plaintiff's claim for $570 should have been denied.
In view of the foregoing, the branch of the cross motion seeking an award for contribution and indemnification was properly denied.
Accordingly, the order is modified by providing that the branch of plaintiff's motion seeking summary judgment against defendants J.A.F. Associates and John Ferranti on plaintiff's claim for $570 is denied.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: July 25, 2012
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