Opinion
2022–02874 Index No. 712653/16
12-20-2023
TM 18 REALTY, LLC, et al., respondents, v. COPPER WANG, INC., et al., appellants.
Thomas J. Hillgardner, Jamaica, NY, for appellants. Joseph H. Neiman, Jamaica Estates, NY, for respondents.
Thomas J. Hillgardner, Jamaica, NY, for appellants.
Joseph H. Neiman, Jamaica Estates, NY, for respondents.
ANGELA G. IANNACCI, J.P., PAUL WOOTEN, HELEN VOUTSINAS, LILLIAN WAN, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Queens County (Carmen R. Velasquez, J.), entered March 15, 2022. The order, insofar as appealed from, denied those branches of the defendants’ motion which were for summary judgment dismissing the first and second causes of action and on their first counterclaim.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendants’ motion which was for summary judgment dismissing the second cause of action, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
In May 2015, the plaintiffs, as landlords, and the defendant Copper Wang, Inc. (hereinafter CWI), as tenant, entered into a commercial lease that was personally guaranteed by the defendant Ruan Min Ying, under which CWI leased real property owned by the plaintiffs for the express and limited purpose of operating a scrap metal business on the premises. In April 2016, CWI served upon the plaintiffs a notice to cure, and thereafter a letter purporting to terminate the lease, on the basis that the plaintiffs had failed to deliver real property that could be used for the operation of a scrap metal business as provided for in the lease. According to the defendants, the certificate of occupancy did not allow such use, and in order to use the property as contemplated, they would need a temporary certificate of occupancy, an amended certificate of occupancy, or a "letter of no objection" from the New York City Department of Buildings, none of which had been obtained.
The plaintiffs thereafter commenced this action to recover unpaid rent and related charges, alleging in the first cause of action a breach of contract and in the second cause of action the existence of an account stated. The defendants interposed, inter alia, a first counterclaim seeking a judgment declaring that the lease was void for illegality as well as counterclaims seeking rescission of the lease. After the completion of discovery, the defendants moved, among other things, for summary judgment dismissing the first and second causes of action and on their first counterclaim. In an order entered March 15, 2022, the Supreme Court, inter alia, denied those branches of the defendants’ motion. The defendants appeal.
The Supreme Court properly denied those branches of the defendants’ motion which were for summary judgment dismissing the first cause of action and on their first counterclaim. The defendants failed to eliminate triable issues of fact as to whether the lease was void for illegality and whether their obligation to pay rent and other charges was thereby abrogated (see 56–70 58th St. Holding Corp. v. Fedders–Quigan Corp., 5 N.Y.2d 557, 561, 186 N.Y.S.2d 583, 159 N.E.2d 150 ; Jack Kelly Partners LLC v. Zegelstein, 140 A.D.3d 79, 85, 33 N.Y.S.3d 7 ; Kosher Konvenience, Inc. v. Ferguson Realty Corp., 171 A.D.2d 650, 651, 567 N.Y.S.2d 131 ; Two Catherine St. Mgt. Co. v. Yam Keung Yeung, 153 A.D.2d 678, 679, 544 N.Y.S.2d 676 ). However, the Supreme Court erred in denying that branch of the defendants’ motion which was for summary judgment dismissing the second cause of action, to recover on an account stated. "An account stated is an agreement, express or implied, between the parties to an account based upon prior transactions between them with respect to the correctness of account items and a specific balance due on them" ( Citibank [S.D.] N.A. v. Cutler, 112 A.D.3d 573, 573–574, 976 N.Y.S.2d 196 ). "An essential element of an account stated is that the parties came to an agreement with respect to the amount due" ( Episcopal Health Servs., Inc. v. POM Recoveries, Inc., 138 A.D.3d 917, 919, 31 N.Y.S.3d 113 ; see Toobian v. Toobian, 209 A.D.3d 907, 910, 177 N.Y.S.3d 124 ).
Here, in opposition to the defendants’ prima facie showing, the plaintiffs failed to raise a triable issue of fact as to whether the parties had come to an agreement on an account. In that respect, the plaintiffs relied entirely upon a statement of account allegedly sent to the defendants after the defendants had sent the notice to cure and letter purporting to terminate the lease based upon the plaintiffs’ failure to perform. Under these circumstances, even assuming the statement of account was properly submitted to the defendants, any failure to object could not be construed as assent to the correctness of the account (see Walter Boss, Inc. v. Roncalli Frgt. Co., Inc., 210 A.D.3d 1124, 1128, 179 N.Y.S.3d 316 ; Episcopal Health Servs., Inc. v. POM Recoveries, Inc., 138 A.D.3d at 919, 31 N.Y.S.3d 113 ; see also Toobian v. Toobian, 209 A.D.3d at 910, 177 N.Y.S.3d 124 ). Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the second cause of action.
The plaintiffs’ remaining contention is not properly before this Court.
IANNACCI, J.P., WOOTEN, VOUTSINAS and WAN, JJ., concur.