| Landau v Weissman |
| 2010 NY Slip Op 07899 [78 AD3d 661] |
| November 3, 2010 |
| Appellate Division, Second Department |
| Harvey G. Landau, Respondent, v Debra Cascardo Weissman,Appellant. |
—[*1] Harvey G. Landau, White Plains, N.Y., respondent pro se.
In an action, inter alia, to recover on an account stated, the defendant appeals (1), as limited by herbrief, from so much of an order of the Supreme Court, Westchester County (Smith, J.), dated June 9,2009, as granted that branch of the plaintiff's motion which was for summary judgment on the thirdcause of action for an account stated and for a money judgment thereon to the extent of awarding himthe sum of $17,545.22, plus interest at 12%, and denied that branch of her cross motion which was, ineffect, for the appointment of a guardian ad litem, and (2) from a judgment of the same court enteredJuly 8, 2009, which, upon the order, is in favor of the plaintiff and against her in the principal sum of$17,545.22, plus interest at 12%.
Ordered that the appeal from so much of the order as granted that branch of the plaintiff's motionwhich was for summary judgment on the third cause of action for an account stated and for a moneyjudgment thereon to the extent of awarding him the sum of $17,545.22, plus interest at 12%, isdismissed; and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that the judgment is reversed, on the law, that branch of the plaintiff's motion which wasfor summary judgment on the third cause of action for an account stated is denied, and the order ismodified accordingly; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The appeal from so much of the order as granted that branch of the plaintiff's motion which was forsummary judgment on the third cause of action for an account stated and for a money judgment thereonto the extent of awarding him the sum of $17,545.22, plus interest at 12%, must be dismissed, as theright of direct appeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from that portion of the orderare brought up for review and have been considered on the appeal from the judgment (seeCPLR 5501 [a] [1]).
"An account stated is an agreement between parties to an account based upon prior transactionsbetween them with respect to the correctness of the account items and balance due" (Jim-MarCorp. v Aquatic Constr., 195 AD2d 868, 869 [1993]; see Cameron Eng'g & Assoc., LLP v JMS Architect[*2]& Planner, P.C., 75 AD3d 488 [2010]). "The agreement maybe express or . . . implied from the retention of an account rendered for an unreasonableperiod of time without objection and from the surrounding circumstances" (Jim-Mar Corp. vAquatic Constr., 195 AD2d at 869; see Jovee Contr. Corp. v AIA Envtl. Corp., 283AD2d 398, 400 [2001]). "Whether a bill has been held without objection for a period of time sufficientto give rise to an inference of assent, in light of all the circumstances presented, is ordinarily a questionof fact, and becomes a question of law only in those cases where only one inference is rationallypossible" (Yannelli, Zevin & Civardi v Sakol, 298 AD2d 579, 580 [2002] [internal quotationmarks omitted]; see Shelly v Skief, 73AD3d 1016 [2010]; Epstein v Turecamo, 258 AD2d 502, 503 [1999]; Legum vRuthen, 211 AD2d 701, 703 [1995]).
Here, the plaintiff failed to establish his prima facie entitlement to judgment as a matter of law, asthe record does not establish that the defendant's assent to the correctness of the invoices at issue wasthe only inference rationally possible (see Yannelli, Zevin & Civardi v Sakol, 298 AD2d at580; Epstein v Turecamo, 258 AD2d at 503). Since the plaintiff failed to meet his prima facieburden, we need not consider the sufficiency of the defendant's opposition papers (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, the Supreme Court erred in awardingthe plaintiff summary judgment on the cause of action for an account stated.
The defendant's contention regarding the appointment of a guardian ad litem is without merit.
The defendant's remaining contentions either are without merit or need not be reached in light ofour determination. Mastro, J.P., Leventhal, Hall and Lott, JJ., concur.