Darius Toraby Architects, P.C. v St. Barnabas Hosp. Corp.

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Darius Toraby Architects, P.C. v St. Barnabas Hosp. Corp. 2006 NY Slip Op 30651(U) June 21, 2006 Supreme Court, New York County Docket Number: 105340/05 Judge: Herman Cahn Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: PART I..--- I ~ Index Number : IO534012005 DARIUS TARABY ARCHITECTS INDEX NO. vs MOTION DATE ST. BARNABAS HOSPITAL MOTION SEQ. NO. 001 MOTION CAL. NO, b Sequence Number : 001 PARTIAL SUMMARY JUDGMENT - . _-_I , , T i this motion to/for PAPERS NUMBERED Notice of Motion/ Order t o Show Cause Answering Affidavits - Affidavits - ... - Exhibits Replying Affidavits Cross-Motion: Exhibits -..-. U Yes U No Upon the foregoing papers, it is ordered that this motion Dated: Q lob J. S. C. :heck one: :heck if appr FINAL DISPOSITION n NON-FINAL DISPOSITION fl DO NOT POST REFERENCE. [* 2] Plai tit i i l , Index No. 105340/05 -against- SI', RARNABAS HOSPTTAL CIOWORA'I'ION, This is :in action to recovcr fees of plaiiitiff'architect, for work performed for thc dekndanl tenant. ?']IC complaint's second cause of action is for an account staled. Plaintiff now nio ves for pai-tia1 s u i i i niary j ud gm ent . This molioii for partial summary judgment, turns on whethcr defcndant's claimed protest, when it reccived plaintiffs stntcrnent o f account, was sufficient to on the claim for an account stated. GLw 26 2D115 'I'hc complaint allcges two ca~iscs action: the first, in quantum metuit:, IS nbt of ,-,, i.: .~. relevant to the instant motion. In the second cause of action, ror an account sta&d;:.:'.,-' <.1 !mJ&-Q/ . j . ,, . , plaintifi'allegcs that it reridcred statements to defendant betwccn August 9, 200 I and May 4, 2004 [or payment of architectural work, labor and services it provided to defendant; that the stateriicnts retidcred created an account stntcd with defendant wilh an account balance of $128,674.06; that upon reccipt of the account stated, dcfendant lailed to ohjcct, and retaincd plaintiiT s statemcnts for an unreasonable length of time without making paymcnt, entitling pla.iiitiff to judgment on its claim in the amount sued for. -1- .- ' L [* 3] I n support of the motion, plaintiff asserts that defendant made payment for scrviccs rendered i n the years 200 1 and 2002, but that 110 payments wcrc made for invoices dated Junc 9, 2003 through May 3, 2004; that on March 1, 2004, plaintiff sent defendant a summary of the aiiiouiit due on the outstanding invoices; and that on May 3, 2004, plaintiff sent the defendant a list of all outstanding bills. Plaintiff claims that it never rcccived any response or complaints Gorn defendant with rcspect to services perforined by the plaintiff, or disburseinents incurred. 1)efendant opposes the motion, claiming that it voiced numerous issues with plaintiff throughout thc period that plaintiff worked for defendant, that one of tliese ob-jcctions, regarding work that needed to be done on certain windows, was voiced at wcckly nicctings with plaintiff, and that defendant has had clear disagreements with plaintiffs invoices. Lkfendant claims that on October 30, 2003, it wrote a letter to the owner s rcpresentative asking hiin to communicate its displcasurc with cxccssive fccs, rejecting invoices issued for the design and supervision o C additional facade coiistruction work, and stating that defendant had taken furthcr stcps to register its dispute with plaintiff with a government agency involved in the project. Dcfcndant has not offered any proof as to whether these ob-jections were ever communicatcd to plaintiff by the owner s representative. Defendant also claiins that on October 6, 2004, counsel sent a lctlcr objccting to an -2- [* 4] earlier demand letter from plaintiff's counsel. An account stated is an account that has bccn balanced and reridered, with an assent to thc balance, either express or implied. Purker, Chupin, Flattau & Klimpl v Drrclen C'orp., 59 AD2d 375 (1" Dept 1977). 'To succeed on this motion for partial sumrnary judgment, plaintiff must demonstrate that del'endant Jhiled to object to or protcst thc accuracy ol'the invoices within a reasonable period of time after receipt. Kqvti, Scholer, Fiwrnan, Huys & Handler, LLP v I,,B. Rus.reIl Chemiculs, Inc., 246 AD2d 479 (1" Dept 1998). Whcthcr a bill has been held without ob-jection for iiiorc than a rcasonable time is ordinarily a question of Jhct, unless only one inference is rationally possible, when it becomes n question of law. Y&7ne/li, Zmin 6; Civurdi v Sukol, 298 AD2d 579 (2'Id Dept 2002). Dcfcndant claims that its oral ob-jections to plaintiffs invoices at wcckly niectings and its two writings addressed to this issuc raisc issucs o f h c t regarding the existence of timely and valid objections to plaiiitifFs invoices, sufficient to dcfcat summary judgment. An examination ol'the facts and the law, however, proves otherwise. Whether a trailsactioil constitutes an account stated is a question of law. Peterson v IBJSchroder Bunk & Trust Ch., 172 AD2d 165 (1" J k p t 1991). 'I'he reccipt and retention of bills without ob.jection is sufficient to create an account statcd. Rockefeller Group, Inc. v Edwards & Hjorth, 164 AD2d 830 (1" Dept 1990). Evidencc of an oral ob-jcction to an account rendcred is sufficient to rcbut an inference of an implied -3- [* 5] agrcciiieiit to pay the stated amoml, on a motion for suinrnary judgment. Sundvoss v Dutzktllherger, I 12 AD2d 278 (2"" Ikpt 1985). TTowcver, defendant inust o f k r specilk, rather than general, allegations of protest. Id. Where an account is rcndered showing ;i balancc due, the party receiving it musl examine it and ob+ject within a reasonable lime, :is silcncc will be deemed to be ;icquicscence. Peterson v IB.JSchrodc.r B u l k CC Trust Co., I72 .41>2d 165, supra. Oral ob-jections l o a rcndered account have bccn found to defeat a motion for suimmary judgment where the defendant spccified the name o r the pcrson to whom the oral protest was madc, and the substance of the conversation. Diamond & Golomh, P. C. v I3 'Arc, 140 AD2d I 83 (1" Dept 1988). As Justice York statcd in Ft.nsler.slock & Partners, LLP v S h q i r o , 7 Misc3d 1002(A), "conclusory oral statements without staling whom and when and the substancc of the conversation one spoke to are insulficicnt to defeat siiiniriary judgnierit Levinson v Gottlitlh, 309 AD2d 668 [Ist Dcpt 20031; Shea und Gouldv Burr, 194 AD2d 369 [l"I)ept 19931." Here, defendant has failed to identiry lo whom thc alleged oral protcsts were addressed at wcckly meetings, and the substance of any conversations, other than the reference to unacccptnblc drawings for windows in a project which def'cndant concedes was originally eslimatcd at $100,000. 'Ihe only other alleged objcctions asserted by defendant are the two writings, one addressed lo an "owner's representative" in March 2003, the other an attorney's response to a demand for paynient in October 2004. Sincc there is no proorofwho the "owner" is, -4- [* 6] or whether the ob-jcctions raised in the del'cndant's lctter to the owner's rcprcscntativc were ever communicated to the plaintXf, this fails to establish that an objection to plaintiff's account was tinicly intcrposed in 2003. Defendant docs not identify which olplaintift's demands for payment its counsel was responding to by lctter dated October 6, 2004. The last dcniand allcgcd by plaintiff is that oCMay 3, 2004, wlicn plaintiff sent defendant a list olits outstanding bills and the total amount due. Thus, defendant's counsel responded to plaintiff's last dcmand fivc months d l c r the dcniand was sent. Defendant's objcction to plaintiffs demand, livc months after it was last madc, is unreasonable as a mattcr of law. Sec Eflenbogen & Goldstt.in, P. C. v Uraniit>s, 226 A112d 237 (1"' Dcpt 1996). Thc niotion for partial surriniary judgment is, therefore, grantcd. Accordingly, it is ORDERED that plaintifl's motion for partial suininary judgment is grantcd, and plaintiff shall lim~ejudg~iicnt against defendant on the second cause of action for $ 1 28,674.06, with interest h i m May 4, 2004, plus costs arid disbursef)rCMs,and it is furthcr '4 qjb d$ $, OIUIERED that the clerk may enter judgment according$Ph. l$c,c \-* Dated: June 2 I. 2006 ENTER: -5- i 26 %? ! 246

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