| American Express Centurion Bank v Gabay |
| 2012 NY Slip Op 02619 [94 AD3d 795] |
| April 10, 2012 |
| Appellate Division, Second Department |
| American Express Centurion Bank, Respondent, v JackGabay, Appellant. |
—[*1] Zwicker & Associates, P.C., Rochester, N.Y. (Steven Bann of counsel), forrespondent.
In an action to recover on an account stated, the defendant appeals from (1) an order of theSupreme Court, Nassau County (Brandveen, J.), dated August 30, 2010, which granted theplaintiff's motion for summary judgment on the complaint, and (2) a judgment of the same courtentered September 14, 2010, which, upon the order, is in favor of the plaintiff and against him inthe principal sum of $55,799.24.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
"An account stated is an agreement between parties to an account based upon priortransactions between them with respect to the correctness of the account items and balance due"(Fleetwood Agency, Inc. v Verde Elec.Corp., 85 AD3d 850, 851 [2011] [internal quotation marks omitted]). "An agreementmay be implied where a defendant retains bills without objecting to them within a reasonableperiod of time, or makes partial payment on the account" (American Express Centurion Bank v Cutler, 81 AD3d 761, 762[2011]).
Contrary to the defendant's contention, the Supreme Court properly granted the plaintiff'smotion for summary judgment on the complaint. The plaintiff met its prima facie burden ofestablishing its entitlement to judgment as a matter of law, tendering evidence that it generatedaccount statements for the defendant in the regular course of business, that it mailed thosestatements to the defendant on a monthly basis, and that the defendant accepted and retainedthese statements for a reasonable period of time without objection, and made partial paymentsthereon (see American [*2]Express Centurion Bank v Williams, 24 AD3d 577 [2005];Citibank [S.D.] v Jones, 272 AD2d 815, 816-817 [2000]; Sullivan v REJ Corp.,255 AD2d 308 [1998]). The evidence submitted by the defendant in opposition was conclusoryand did not contain the necessary evidentiary details regarding his alleged objection to theaccount statements. Accordingly, the defendant failed to raise a triable issue of fact (see J.B.H., Inc. v Godinez, 34 AD3d873, 875 [2006]; Jovee Contr. Corp. v AIA Envtl. Corp., 283 AD2d 398, 400[2001]; Sullivan v REJ Corp., 255 AD2d at 308). Balkin, J.P., Chambers, Hall andAustin, JJ., concur.