Retention Performance Mktg., Inc. v Hustedt Hyundai, Inc.

[*1] Retention Performance Mktg., Inc. v Hustedt Hyundai, Inc. 2008 NY Slip Op 50518(U) [19 Misc 3d 128(A)] Decided on March 7, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 7, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : McCABE, J.P., TANENBAUM and MOLIA, JJ
2006-2077 S C.

Retention Performance Marketing, Inc., Appellant,

against

Hustedt Hyundai, Inc., Respondent, -and- John Does 1 Through 10, Defendants.

Appeal from an order of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered November 27, 2006. The order, insofar as appealed from, denied plaintiff's motion seeking summary judgment on its cause of action for an account stated against defendant Hustedt Hyundai, Inc.

Order, insofar as appealed from, reversed without costs and plaintiff's motion for
summary judgment on its cause of action for an account stated against Hustedt Hyundai, Inc. granted to the extent of awarding plaintiff the sum of $11,366.65.

Plaintiff established its prima facie entitlement to summary judgment as against the corporate defendant, Hustedt Hyundai, Inc. (Hustedt), on its cause of action for an account stated by submitting evidence that Hustedt received and retained, without objection, the invoices, in the total sum of $11,366.65, seeking payment for services rendered (see Citibank [SD] N.A. v Reine, 14 Misc 3d 130[A], 2007 NY Slip Op 50013[U] [App Term, 2d & 11th Jud Dists 2007]). Hustedt's opposing affidavit was insufficient to raise a triable issue of fact since it contained self-serving, bald allegations of an oral protest and failed to identify the individual alleged to have made the protest on its behalf or the content of the oral objection to said stated accounts (see Fashion Ribbon Co. Inc. v Carnival Creations Inc., 5 Misc 3d 137[A], 2004 NY Slip Op 51564[U] [App Term, 2d & 11th Jud Dists 2004]). Furthermore, evidence that plaintiff sent Hustedt a facsimile indicating that invoices were attached and requested payment was insufficient to establish that Hustedt had objected to the stated accounts. Accordingly, plaintiff [*2]is entitled to summary judgment on the account stated cause of action as against defendant Hustedt in the sum of $11,366.65.

We note that while plaintiff's motion for summary judgment also sought to recover attorney's fees, such an award is generally not recoverable upon a cause of action based on an account stated (see Citibank [S.D.] v Macarle, 11 Misc 3d 128[A], 2006 NY Slip Op 50241[U] [App Term, 9th & 10th Jud Dists 2006]).

McCabe, J.P., Tanenbaum and Molia, JJ., concur.
Decision Date: March 7, 2008