Abbott, Duncan & Wiener v. Ragusa

Apr 18, 1995
Versions:214 A.D.2d 412
625 N.Y.S.2d 178
1995 N.Y. App. Div. LEXIS 4342

Order, Supreme Court, New York County (Walter Schackman, J.), entered July 7, 1994, which, inter alia, denied plaintiffs motion for summary judgment on the complaint, unanimously affirmed, without costs.

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 NY2d 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 AD2d 833, 836). In this case, the numerous affidavits reaffirmed and resubmitted by defendant in opposition to plaintiffs 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.