"The failure to object raises a presumption of correctness which may be rebutted by proof of any circumstances tending to a contrary inference[.]" James Talcott, Inc. v. U.S. Tel. Co., 52 A.D.2d 197, 200 (1st Dep't 1976) (citation omitted). Importantly for the present purposes, "an account stated cannot be made an instrument to create liability when none otherwise exists[.

The receipt of credit card bills by a defendant without objection does not necessarily make it an account stated because the failure to object raises a presumption of assent which may be rebutted by circumstances tending to support a contrary inference. See James Talcott Inc. v. U.S. Tel. Co., 52 A.D.2d 197, 383 N.Y.S.2d 39 (1st Dept 1976) ; Simmons v. Santoro, 36 Misc.3d 409, 232 N.Y.S.2d 602 (N.Y.Sup 1962).In 1 N.Y. Jur 2d Accounts and Accounting § 18, the following is stated:

The receipt of credit card bills by a defendant without objection does not necessarily make it an account stated because the failure to object raises a presumption of assent which may be rebutted by circumstances tending to support a contrary inference. See James Talcott Inc. v. U.S. Tel. Co., 52 AD2d 197, 383 NYS2d 39 (1st Dept 1976); Simmons v. Santoro, 36 Misc 3d 409, 232 NYS2d 602 (NYSup 1962). In 1 NY Jur 2d Accounts and Accounting § 18, the following is stated:

It is well established that "[a]n account stated is an account, balanced and rendered, with an assent to the balance either express or implied" (Abbott, Duncan & Weiner v Ragusa, 214 AD2d 412, 413 [1st Dept 1995], citing Interman Indus. Prods, v R.S.M. Electron Power, 37 NY2d 151, 153 [1975]). "[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]). An account stated may arise when a party retains invoices without rejecting them or objecting to them within a reasonable time, evincing an acquiesce to the amount due (see Shaw v Silver, 95 AD3d 416, 416 [1st Dept 2012]; Morrison Cohen Singer & Weinstein, LLP v Waters, 13 AD3d 51 [1st Dept 2004]).

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).

“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] ).

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.

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).

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.)

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.