Stewart R. Fink, PC v Weiss

[*1] Stewart R. Fink, PC v Weiss 2005 NYSlipOp 50863(U) Decided on June 3, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 3, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and BELEN, JJ.
2004-835 Q C

Stewart R. Fink, PC, Appellant,

against

Norman Weiss and JANET WEISS, Respondents.

Appeal by plaintiff, as limited by his brief, from so much of an order of the Civil Court, Queens County (J. Golia, J.), entered January 9, 2004, as granted defendants' cross motion for summary judgment and dismissed the complaint.

Order insofar as appealed from unanimously affirmed without costs.

On April 27, 2001, plaintiff commenced the instant action to recover payment for legal services rendered based on an account stated. The statute of limitations for an account stated cause of action is six years (see CPLR 213 [2]; Erdheim v Gelfman, 303 AD2d 714 [2003]) and an action based on an account stated accrues on the date of the
last transaction in the account (see 75 NY Jur 2d, Limitations and Laches § 90; Gaier, P.C. v Iveli, 287 AD2d 375 [2001]). After reviewing the invoices sent by plaintiff to defendants, it is clear that plaintiff billed defendants on October 1, 1994 for legal services rendered prior thereto. Therefore, the instant action was not timely commenced.

We find no merit to plaintiff's contention that a new and actionable account stated was created by defendant's receipt and retention, without objection, of invoices sent after October 1, 1994. Each invoice merely referred to the prior balance of October 1, 1994. The rendering of bills after the date upon which services are completed does not restart the statute of limitations each time those bills are generated (see Gaier, P.C. v Iveli, 287 AD2d 375, supra; Stewart v Stuart, 262 AD2d 396 [1999]).

Further, we find that the letter dated July 26, 1995 from defendant Norman Weiss to [*2]plaintiff was not a written acknowledgment of a debt since it did not recognize an existing debt or evince an intention by defendants to pay a sum certain (see Knoll v Datek Sec. Corp., 2 AD3d 594 [2003]).
Decision Date: June 03, 2005