| White Plains Cleaning Servs., Inc. v 901 Props., LLC |
| 2012 NY Slip Op 03182 [94 AD3d 1108] |
| April 24, 2012 |
| Appellate Division, Second Department |
| White Plains Cleaning Services, Inc., Respondent, v 901Properties, LLC, et al., Appellants. |
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Jack Bliss, White Plains, N.Y., for respondent.
In an action to recover on an account stated, the defendants appeal from an order of theSupreme Court, Westchester County (Liebowitz, J.), entered October 4, 2011, which denied theirmotion, inter alia, to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state acause of action.
Ordered that the order is affirmed, with costs.
The plaintiff asserts three causes of action to recover on an account stated. Taken together,the complaint, and the affidavits submitted in opposition to the pre-answer motion to dismiss,alleged that the plaintiff was engaged by the managing agents of three commercial properties, asagents of the owners, to perform cleaning services at the properties, that it performed thoseservices, that it forwarded statements to the managing agents and that the managing agentsassented to the amounts due, and that payment had not been made. The Supreme Court deniedthe defendants' pre-answer motion, inter alia, to dismiss the complaint for failure to state a causeof action pursuant to CPLR 3211 (a) (7), and the defendants appeal. We affirm.
"On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state acause of action, the court must afford the pleading a liberal construction, accept all facts asalleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, anddetermine only whether the facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty, LLC, 54AD3d 703, 703-704 [2008]; seeEBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; Leon v Martinez,84 NY2d 83, 87 [1994]; East HamptonUnion Free School Dist. v Sandpebble Bldrs., Inc., 66 AD3d 122, 125 [2009], affd16 NY3d 775 [2011]; Smith vMeridian Tech., Inc., 52 AD3d 685, 686 [2008]).
An account stated is an agreement between parties as to an account and the correctness ofaccount items and a specific balance due on them (see Stephan B. Gleich & Assoc. v Gritsipis, 87 AD3d 216, 223[2011]; Landau v Weissman, 78AD3d 661, 662 [2010]; Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869[1993]). It may be express, or it may be implied, for example, when a party has retained billingstatements without rejecting them or objecting to them within a reasonable time undercircumstances evincing assent (see Stephan B. Gleich & Assoc. v Gritsipis, 87 AD3d at223; American Express Centurion Bankv Cutler, 81 AD3d 761, 762 [2011]; Landau v Weissman, 78 AD3d at [*2]661; Jim-Mar Corp. v Aquatic Constr., 195 AD2d at869-870).
Here, the complaint, as supplemented by affidavits, adequately states a cause of actionsufficient to survive dismissal under CPLR 3211 (a) (7). The plaintiff alleged that the managingagents of the building engaged it, on behalf of the owners of the building, to perform cleaningservices. Further, this relationship existed over the course of many years, during which theplaintiff was paid for its work. These allegations are sufficient, at least at the pleading stage, tomake out a principal-agency relationship. Similarly, the plaintiff sufficiently alleged that themanaging agents had assented to the amounts due so as to state a cause of action for an accountstated. It is irrelevant that the defendants themselves did not receive the invoices or statements(see Lesnick & Mazarin v Cutler, 255 AD2d 367 [1998]). "A principal is bound by noticeto or knowledge of his or her agent in all matters within the scope of the agency, notwithstandingthe fact that such information is never actually communicated to the principal" (Smalls vReliable Auto Serv., 205 AD2d 523, 524 [1994]; see Center v Hampton Affiliates,66 NY2d 782, 784 [1985]; Lesnick & Mazarin v Cutler, 255 AD2d 367 [1998]).
The defendants' remaining contentions either are without merit (see CPLR 311,311-a; Business Corporation Law § 306 [b] [1]; Limited Liability Company Law §301), or are not properly before this Court (see US Bank N.A. v Caronna, 92 AD3d 865 [2012]; Ocean View Realty Co. v Ziss, 90AD3d 872, 873 [2011]; YeshivaChasdei Torah v Dell Equity, LLC, 90 AD3d 746, 747 [2011]). Florio, J.P., Balkin, Lottand Miller, JJ., concur.