Pepper's cannot conceivably be found to have assented to the account as stated by Lissner. See, e.g., James Talcott, Inc. v. United States Tel. Co., 52 A.D.2d 197, 383 N.Y.S.2d 39, 41 (1976) (evidence of account stated subject to refutation by proof of timely oral protest). Lissner likewise has failed to prove an accord and satisfaction.

Special Term implied in its decision that oral objections would not be sufficient. However, the Court of Appeals in Lockwood v. Thorne (supra), clearly held that evidence of oral objection to an account rendered is relevant and competent to rebut an inference of an agreement by acquiescence (Lockwood v. Thorne, supra, p 291; see, also, James Talcott, Inc. v. United States Tel. Co., 52 A.D.2d 197). Accordingly, the order should be reversed and plaintiff's motion denied. Order reversed, on the law, with costs, and plaintiff's motion for summary judgment denied.

Defendant correctly cites James Talcott, Inc. v. United States Telephone Co., 52 A.D.2d 197, 383 N.Y.S.2d 39 (1st Dep't 1976), for the proposition that summary judgment on an account stated is inappropriate where the debtor has disagreed as to the correct amount due. Distinguishable from the facts here, where Aronoff kept a three year silence, the alleged debtor in Talcott had voiced constant oral complaints to the party seeking to recover on an alleged account stated, and these complaints were often considered and acted upon to adjust the accounts between the parties.

Pepper's Steel Alloys Inc. v. Lissner Minerals Metals, Inc., 494 F. Supp. 487, 496 (S.D.N.Y. 1979); Newburger-Morris Co. v. Talcott, 219 N.Y. 505, 511-12, 114 N.E. 846 (1916); Clune v. Healthco Medical, 78 A.D.2d 914, 433 N.Y.S.2d 52 (3rd Dept. 1980). Evidence of an account stated is, however, subject to refutation by proof of timely protest. James Talcott, Inc. v. U.S. Tel. Co., 52 A.D.2d 197, 201, 383 N.Y.S.2d 39 (1st Dept. 1976). (If defendant makes constant oral objections to plaintiff, which are accepted and acted upon, there may be questions as to whether plaintiff waived his right to insist upon timely written objections.)

Testimony adduced by the plaintiff to the effect that the defendant had made periodic payments on the account without objection and that the defendant's general manager had examined the bills and invoices and found them to be in order created a presumption of the existence of an account stated. The defendant sought to rebut this by submitting evidence of his written objections to certain invoices that he had received (see, Chisholm-Ryder Co. v Sommer Sommer, 70 A.D.2d 429; James Talcott, Inc. v United States Tel. Co., 52 A.D.2d 197, 200-201). The resolution of this factual dispute was a question for the jury.

Whether the college's objections to the invoices, first stated in a letter dated October 8, 1996, were made within a reasonable time so as to defeat a claim for an account stated, may constitute a defense, but does not, at this stage, suffice to support the conclusion that the claim does not appear to be meritorious. ( See, Werner v Nelkin, 206 A.D.2d 422, 423; Rockefeller Group v Edwards Hjorth, 164 A.D.2d 830; Talcott, Inc. v United States Tel. Co., 52 A.D.2d 197, 200.)

Prudential Bldg. Maintenance Corp. v Burton Siedman Associates, Inc., 86 AD2d 519 (1st Dept 1982). See also Talcott, Inc. v U.S. Tel. Co., 52 AD2d 197 (1st Dept 1976).

While Puritan claims that it made repeated oral objections to the invoices in question, specific written objections are lacking, and no written waivers have been produced ( see, Appel Corp. v. Crocker Commercial Servs., 146 A.D.2d at 472;see also, Congress Talcott Corp. v. Damino Accessories, 166 A.D.2d 152, 153). Unlike James Talcott, Inc. v. United States Tel. Co. (52 A.D.2d 197), upon which Puritan relies, McFadyen did not waive its right to insist upon timely written objections by accepting and acting upon Puritan's oral objections. To the contrary, the record reveals that McFadyen insisted upon payment in full.

“Oral objections to an account stated are sufficient to defeat a motion for summary judgment” (Prudential Bldg. Maintenance Corp. v. Burton Siedman Assoc., 86 A.D.2d 519, 519 [1st Dept 1982]; see also James Talcott, Inc. v. United States Tel. Co., 52 A.D.2d 197, 201 [1st Dept 1976] ).

It "is an agreement between parties to an account balance based upon prior transactions between them" (Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869 [3d Dept 1993]). "[T]he very meaning of an account stated is that the parties have come together and agreed upon the balance of the indebtedness. . .so that an action to recover the balance as upon an implied promise of payment may thenceforth be maintained " (Herrick, Feinstein LLP v Stamm, 297 AD2d 477, 478 [1st Dept 2002]; see James Talcott, Inc. v United States Tel. Co., 52 AD2d 197, 200 [1st Dept 1976]).). However, there can be no account stated if there is any dispute about the account (see Abbott, Duncan & Weiner, 214 AD2d at 413).