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.

In light of defendants' failure to interpose objections in accordance therewith, the monthly account statements became binding upon them, irrespective of any oral objections claimed to have been raised (Appel Corp. v. Crocker Commercial Servs., 146 A.D.2d 472, lv denied 74 N.Y.2d 608, rearg granted and order vacated on other grounds 155 A.D.2d 331), and Congress was entitled to summary judgment. Unlike the facts and circumstances in James Talcott, Inc. v. United States Tel. Co. ( 52 A.D.2d 197), relied upon by defendants, this case does not raise bona fide issues of fact with respect to the amounts in question.

Appeal from the Supreme Court, New York County (Myriam J. Altman, J.). Triable issues of fact exist as to the fifth and largest of the invoices involved in the action, including whether a timely objection was made to it (see, James Talcott, Inc. v United States Tel. Co., 52 A.D.2d 197), and whether the delay in objecting, if any, was reasonable (see, Camp, Dresser McKee v City of Niagara Falls, 142 A.D.2d 973). Nor can it be said as a matter of law that plaintiff did flawless work in a timely fashion, which was accepted by defendant without timely objection of any sort, and which was then accepted by defendant's customer without complaint as to plaintiff's work. We do not consider plaintiff's argument, presented for the first time on appeal, that defendant disposed of allegedly defective goods in violation of UCC 2-515.

We agree with the Supreme Court that the evidence of the parties' course of dealings, as set forth in the defendant's papers in opposition to the motion, raises a triable issue of fact regarding the existence of an account stated. In view of the defendant's claim that the account has been the subject of repeated and long-standing oral disputes and that payments have only been made for those charges which the plaintiff has documented and verified, the denial of summary judgment was proper (see generally, Scheichet Davis v. Steinger, 183 A.D.2d 479; Ronny-Gerard, Inc. v. Zimmerman, 150 A.D.2d 438; Harold R. Clune, Inc. v. Healthco Med. Supply, 78 A.D.2d 914; James Talcott, Inc. v. United States Tel. Co., 52 A.D.2d 197). We find that the defendant's evidentiary submissions on the motion were adequately specific under the circumstances of this case and in relation to the degree of specificity employed in the plaintiff's letter and invoice dated September 4, 1990. Sullivan, J.P., Lawrence, Eiber and Ritter, JJ., concur.

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).