| BRK Props., Inc. v Wagner Ziv Plumbing & Heating Corp. |
| 2011 NY Slip Op 08316 [89 AD3d 883] |
| November 15, 2011 |
| Appellate Division, Second Department |
| BRK Properties, Inc., et al., Appellants, v Wagner Ziv Plumbing& Heating Corp., Respondent, et al., Defendants. |
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Farley & Kessler, P.C., Jericho, N.Y. (Cary D. Kessler, Susan R. Nudelman, and Richard L.Farley of counsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal, as limitedby their brief, from so much of a judgment of the Supreme Court, Queens County (Kitzes, J.), enteredJune 29, 2010, as, after a nonjury trial, is in favor of the defendant Wagner Ziv Plumbing & HeatingCorp. and against them on its counterclaim for an account stated in the principal sum of $59,000.
Ordered that the judgment is modified, on the law, by deleting the provision thereof in favor of thedefendant Wagner Ziv Plumbing & Heating Corp. on its counterclaim for an account stated insofar as itis against the plaintiffs Michele Cohen, Inc., and Nat Holding Corp. in the sum of $59,000 andsubstituting therefor a provision dismissing that counterclaim insofar as asserted against those plaintiffs;as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.
In 2002 the plaintiffs hired the defendant Wagner Ziv Plumbing & Heating Corp. (hereinafterWagner Ziv) to perform plumbing work on various buildings they owned. After various disputes arosewith respect to the work performed and the payment allegedly due for that work, the plaintiffscommenced this action, seeking to recover damages, inter alia, for breach of contract. Wagner Zivasserted counterclaims, seeking to recover damages based on breach of contract, an account stated,and quantum meruit. After a nonjury trial, the Supreme Court found that the writing relied on by theparties was so cursory and vague as not to be an enforceable contract. The Supreme Court found,however, in favor of Wagner Ziv on its counterclaim for an account stated, and a judgment was entereddismissing the complaint, and awarding Wagner Ziv damages in the principal sum of $59,000 on thatcounterclaim. The plaintiffs appeal from so much of the judgment as awarded Wagner Ziv damages onthat counterclaim.
"[A]n 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 the balance due. . . By retaining billing statements and failing to object to the account within a reasonabletime, the recipient of the bill implies that he or she agrees with the sender regarding the amount owed"(Stephan B. Gleich & Assoc. v Gritsipis,87 AD3d 216, 223 [2011] [citations omitted]; see Rodkinson v Haecker, 248 NY 480,485 [1928]; Law Offs. of Clifford G. Kleinbaum v Shurkin, 88 AD3d 659 [2d Dept 2011]).In reviewing a determination made after a nonjury trial, this Court's power is as broad as that of the trialcourt, and it may render the judgment it finds warranted by the facts, taking into account that in a closecase the trial court had the advantage of seeing and hearing the witnesses (see NorthernWestchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Ryanv IM Kapco, Inc., 88 AD3d 682 [2d Dept 2011]; Griffin's Landscaping Corp. [Corp.] v Bisesto, 87 AD3d 1111 [2011]).In exercising that power, we find that the verdict on the counterclaim as to an account stated waswarranted by the facts with respect to the plaintiffs BRK Properties, Inc., and Oxford Holding Corp.(cf. Nebraskaland, Inc. v Best Selections, 303 AD2d 662, 664 [2003]). The evidence,however, was insufficient as against the plaintiffs Michele Cohen, Inc., and Nat Holding Corp., becausethe properties owned by those plaintiffs were not implicated in the counterclaim. Therefore, judgmentshould not have been entered against those plaintiffs.
The parties' remaining contentions either are without merit or need not be addressed in light of ourdetermination. Skelos, J.P., Balkin, Leventhal and Lott, JJ., concur.