78 A.D.2d 914 | N.Y. App. Div. | 1980
Appeal from an order of the Supreme Court at Special Term, entered September 19, 1979 in Schenectady County, which granted a motion by plaintiff for summary judgment on an action for account stated, and which severed defendant’s counterclaim for damages. Plaintiff sues to recover the sum of $6,681.71. The cause of action, based on the theory of an account stated, alleges that plaintiff delivered to defendant an account for goods and services sold and delivered in December of 1976, which it asserts was accepted by the defendant without objection. Defendant’s answer denied the allegations of the complaint and sets forth two affirmative defenses and counterclaims for damages in the amount of $9,145.32, alleging that the goods supplied were defective. Defendant contends that it objected verbally to the account rendered as soon as it discovered the defects, which was shortly after the account was rendered. In opposition to plaintiff’s motion for summary judgment, defendant contends that an issue of fact exists, precluding summary relief. We agree. Defendant asserts that it refused to pay until all defects were remedied and the account adjusted to reflect defendant’s losses due to plaintiff’s negligence. In granting plaintiff’s motion for summary judgment, Special Term accepted plaintiff’s theory that, as a matter of law, the account was stated. In determining whether an account stated exists, there must be a mutual agreement between the parties as to the correctness of the balance due. “The minds of the parties must meet upon the allowance of each item or claim allowed, and
