| Branch Servs., Inc. v Cooper |
| 2013 NY Slip Op 00058 [102 AD3d 645] |
| January 9, 2013 |
| Appellate Division, Second Department |
| Branch Services, Inc., Respondent, v Mary AnnCooper, Appellant. |
—[*1] Jay A. Press, P.C., Melville, N.Y. (Erica R. Hurst of counsel), forrespondent.
In an action to recover on an account stated and for unjust enrichment, the defendantappeals, as limited by her brief, from so much of an order of the Supreme Court, SuffolkCounty (Tanenbaum, J.), dated August 9, 2011, as granted that branch of the plaintiff'smotion which was for summary judgment on the issue of liability on both causes ofaction.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,that branch of the plaintiff's motion which was for summary judgment on the issue ofliability on both causes of action is denied, and, upon searching the record, summaryjudgment is awarded to the defendant dismissing the cause of action to recover on anaccount stated.
On September 7, 2007, there was a fire in the kitchen of the defendant's home whichresulted in damage to the home. From September 14, 2007, through September 24, 2007,employees of the plaintiff, a restoration, remediation, and reconstruction company,performed a cleanup of the defendant's home.
The plaintiff sent the defendant an invoice dated March 3, 2008, in the amount of$20,841. In response, in letters dated April 9, 2008, April 14, 2008, June 3, 2008, andJune 4, 2008, respectively, the defendant requested that the plaintiff provide an itemizedcopy of the bill, including the job description, hourly rate charged, and the amount oftime needed to complete the job. The defendant also requested a copy of the contractauthorizing the plaintiff to perform the work.
The plaintiff responded to the defendant's requests in a letter dated June 9, 2008, andprovided a copy of the estimate that it submitted to the defendant's insurance company.The defendant then informed the plaintiff, in a letter dated June 26, 2008, that she wouldnot pay the plaintiff's invoice in the amount of $20,841. Thereafter, the defendant filed acomplaint against the plaintiff with the New York State Attorney General's Bureau ofConsumer Frauds and Protection and the New York State Insurance Department.
The plaintiff commenced this action to recover on an account stated and for unjustenrichment. It then moved for summary judgment on the complaint. The Supreme Courtgranted that branch of the plaintiff's motion which was for summary judgment on theissue of liability on both causes of action. It found that the plaintiff submitted proof thatit performed services for the [*2]defendant for which ithad not been paid, and, in opposition, the defendant failed to raise a triable issue of factbecause she submitted an affirmation from her attorney, who did not have firsthandknowledge of the events. The Supreme Court did not note that annexed to the affirmationof the defendant's attorney were, inter alia, the transcript of the defendant's depositionand the correspondence between the parties which occurred prior to the commencementof this action.
" '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 andbalance due' " (FleetwoodAgency, Inc. v Verde Elec. Corp., 85 AD3d 850, 851 [2011], quotingJim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869 [1993]; see Citibank [S.D.], N.A. vBrown-Serulovic, 97 AD3d 522, 523 [2012]; American Express Centurion Bankv Cutler, 81 AD3d 761, 762 [2011]). "An agreement may be implied where adefendant retains bills without objecting to them within a reasonable period of time ormakes partial payment on the account" (American Express Centurion Bank vCutler, 81 AD3d at 762; seeLandau v Weissman, 78 AD3d 661, 662 [2010]).
Here, the plaintiff failed to make a prima facie showing of entitlement to judgment asa matter of law on the issue of liability on the cause of action to recover on an accountstated. The affidavit of the plaintiff's project manager, submitted in support of theplaintiff's motion, stated that, when the defendant was contacted about payment, shestated that she never authorized the plaintiff to do work in her home and did not intend topay the plaintiff. In addition, the plaintiff's project manager averred that "not even asingle payment was ever received," even though the defendant had been billed for theplaintiff's services. These submissions are insufficient to establish, as a matter of law,that the defendant retained the subject invoices for an unreasonable period of timewithout objecting to them, or that she made partial payment on the invoices (seeCitibank [S.D.], N.A. v Brown-Serulovic, 97 AD3d at 523; Raytone Plumbing Specialities,Inc. v Sano Constr. Corp., 92 AD3d 855, 856 [2012]; American ExpressCenturion Bank v Cutler, 81 AD3d at 762). Accordingly, the Supreme Court shouldhave denied that branch of the plaintiff's motion, regardless of the sufficiency of theopposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]; American Express Centurion Bank v Cutler, 81 AD3d at 763; Encarnacion v Smith, 70AD3d 628, 630 [2010]).
Further, the evidence submitted by the plaintiff demonstrated that there was noexpress agreement between the parties to an account and that the defendant neitherretained the subject invoices for an unreasonable period of time without objecting tothem, nor made partial payment on the invoices. Upon our authority to search the recordand award summary judgment to the nonmoving party with respect to an issue that wasthe subject of the motion before the Supreme Court (see CPLR 3212 [b]), weaward summary judgment to the defendant dismissing the cause of action to recover onan account stated.
" 'The essential inquiry in any action for unjust enrichment . . . iswhether it is against equity and good conscience to permit the defendant to retain what issought to be recovered' " (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182[2011], quoting Paramount Film Distrib. Corp. v State of New York, 30 NY2d415, 421 [1972], cert denied 414 US 829 [1973]). A plaintiff must show " 'that(1) the other party was enriched, (2) at that party's expense, and (3) that ''it is againstequity and good conscience to permit [the other party] to retain what is sought to berecovered" ' " (Mandarin Trading Ltd. v Wildenstein, 16 NY3d at 182, quotingCitibank, N.A. v Walker,12 AD3d 480, 481 [2004]; Baron v Pfizer, Inc., 42 AD3d 627, 629-630 [2007]). Here,the plaintiff made a prima facie showing of entitlement to judgment as a matter of law onthe cause of action alleging unjust enrichment through the affidavit of its projectmanager explaining that the plaintiff performed cleanup services at the defendant's homefor which it had yet to be paid.
However, in opposition, the defendant raised a triable issue of fact by submitting atranscript of her deposition, at which she testified that she did not ask the plaintiff toperform work in her home and that she had been informed that her insurance carrier wasgoing to pay the plaintiff for its services. Where services were performed at the behest ofsomeone other than the defendant, the plaintiff must look to that person for recovery (see Ehrlich v Froehlich, 72AD3d 1010, 1011 [2010]; Fountoukis v Geringer, 33 AD3d 756, 757 [2006];Kagan v K-Tel Entertainment, 172 AD2d 375, 376 [1991]). The Supreme Courterred in finding that the defendant's opposition to the plaintiff's motion was [*3]insufficient. Although the defendant's attorney did notassert any personal knowledge of the facts, his affirmation, to which were annexed atleast 25 exhibits, including the transcript of the defendant's deposition testimony,satisfied the requirements of CPLR 3212 since it served as a vehicle for the submissionof documentary evidence (see Alvarez v Prospect Hosp., 68 NY2d 320, 325[1986]; Olan v Farrell Lines, 64 NY2d 1092, 1093 [1985]; Zuckerman v Cityof New York, 49 NY2d 557, 563-564 [1980]; State of New York v Grecco, 43 AD3d 397, 399-400[2007]).
Accordingly, the Supreme Court should have denied that branch of the plaintiff'smotion which was for summary judgment on the issue of liability on the cause of actionalleging unjust enrichment. Dillon, J.P., Leventhal, Austin and Miller, JJ., concur.