Opinion
2002-09660.
December 29, 2003.
In an action, inter alia, to recover for an account stated, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Carter, J.), entered August 2, 2002, as denied that branch of its motion which was for summary judgment on its cause of action based on an account stated in the sum of $10,000.
Amos Weinberg, Great Neck, N.Y., for appellant.
Louis A.H. Pepper, Great Neck, N.Y., for respondent.
Before: GLORIA GOLDSTEIN and WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff bases its cause of action for an account stated asserting that an invoice dated August 6, 2001, was sent to, and received by, the defendant at some later point. The plaintiff's "collections manager" stated that, on October 4, 2001, about eight weeks following the date of the invoice, a representative of the defendant expressed a preference for making payments by installment, rather than in a lump sum as requested in the invoice. The present action was commenced on October 18, 2001, approximately 10 weeks after the drafting of the invoice.
On appeal, the plaintiff claims the right to summary judgment in the sum of $10,000, rather than in the sum of $29,250 as requested in the plaintiff's complaint, and in its motion for summary judgment before the Supreme Court. This "unexplained, voluntary reduction of the amounts allegedly owed raise[s] a question as to whether there had been a dispute over the amounts originally claimed in the invoices" Santora McKay v. Mazzella, 182 A.D.2d 572, 572-573; see Reid Priest v. Realty Asset Group, 250 A.D.2d 380; Sisters of Charity Hosp. of Buffalo v. Riley, 231 A.D.2d 272, 282-283). Moreover, even if, on appeal, the plaintiff had continued to demand summary judgment in the sum of $29,250, such relief would not be warranted under the circumstances presented.
"Whether a bill has been held without objection for a period of time sufficient to give rise to an inference of assent, in light of all the circumstances presented, is ordinarily a question of fact, and becomes a question of law only in those cases where only one inference is rationally possible." ( Yannelli, Zevin Civardi v. Sakol, 298 A.D.2d 579, 580, quoting Legum v. Ruthen, 211 A.D.2d 701, 703, citing Bowne of City of N.Y. v. International 800 Telecom Corp., 178 A.D.2d 138; see also Osborne v. Murray, 240 A.D.2d 261; Camp, Dresser McKee v. City of Niagara Falls, 142 A.D.2d 973). Under the circumstances presented in this record, the evidence submitted by the plaintiff was insufficient to establish a prima facie right to summary judgment on its cause of action based on account stated ( see Herrick, Feinstein v. Stamm, 297 A.D.2d 477; Camp, Dresser McKee v. City of Niagara Falls, supra; cf. Edge Mgt. Corp. v. Crossborder Exch. Corp., 304 A.D.2d 422).
Under these circumstances, we need not address whether the defendant's submissions in opposition would have been sufficient to raise a triable issue of fact ( cf. Darby Darby v. VSI Intl., 95 N.Y.2d 308; Greenspan Greenspan v. Wenger, 294 A.D.2d 539; Shea Gould v. Burr, 194 A.D.2d 369, 371).
ALTMAN, J.P., KRAUSMAN, GOLDSTEIN and MASTRO, JJ., concur.