Chianis & Anderson Architects, PLLC v. Courterback Dev. Co.

• Decision Date: 02 June 2016
• Citation: 2016 N.Y. Slip Op. 04292,34 N.Y.S.3d 648,140 A.D.3d 1286
• Parties: CHIANIS & ANDERSON ARCHITECTS, PLLC, Respondent, v. COURTERBACK DEVELOPMENT COMPANY, LLC, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1286
34 N.Y.S.3d 648
2016 N.Y. Slip Op. 04292

CHIANIS & ANDERSON ARCHITECTS, PLLC, Respondent,
v.
COURTERBACK DEVELOPMENT COMPANY, LLC, et al., Appellants.

Supreme Court, Appellate Division, Third Department, New York.

June 2, 2016.

34 N.Y.S.3d 650

Hinman, Howard & Kattell LLP, Binghamton (Daniel R. Norton of counsel), for appellants.

Levene Gouldin & Thompson, LLP, Binghamton (Michael R. Wright of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., LYNCH, DEVINE and MULVEY, JJ.

DEVINE, J.

140 A.D.3d 1287

Appeals (1) from an order of the Supreme Court (Tait, J.), entered July 1, 2015 in Broome County, which, among other things, granted plaintiff's motion for summary judgment, and (2) from the judgment entered thereon.

Plaintiff, an architectural and interior design firm, was orally retained to perform services involving the residence of defendant Raymond Stanton III in 2008. Stanton is a principal and member of defendant Courterback Development Company, LLC, and he directed plaintiff to submit its invoices to Courterback for payment. Plaintiff did so and, while Courterback paid a number of invoices in full, it failed to make payment on invoices submitted in December 2008 and February 2009.

Courterback also became involved in the development of a manufacturing facility in conjunction with Impress USA, Inc., a role that was later filled by defendant R2 Development Company, LLC. Pursuant to an oral agreement that was later confirmed in writing, Courterback and R2 retained plaintiff to perform architectural and engineering work on the project. Plaintiff submitted invoices for its work to Courterback, which failed to make full payment on several submitted in March 2009. Impress terminated the involvement of Courterback and R2 in the project shortly before those invoices were submitted, a state of affairs that culminated in Courterback and R2 bringing suit against Impress in 2011.

Plaintiff thereafter commenced this action for, among other things, account stated to recover moneys allegedly owed by defendants on the Stanton and Impress projects. Following joinder of issue, plaintiff moved for summary judgment upon the account stated claims. Defendants opposed that request and cross-moved for a plethora of relief, including consolidation of this action with the 2011 action and leave to serve an amended answer with counterclaims stemming from plaintiff's allegedly improper business relations with Impress. Supreme Court granted plaintiff's motion and denied defendants' cross

140 A.D.3d 1288

motion as moot. Defendants appeal from that order and the judgment entered thereon.

An account stated is “an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due,” and “may be implied from the retention of an account rendered for an unreasonable period of time without objection and from the surrounding circumstances” (Levine v. Harriton & Furrer, LLP, 92 A.D.3d 1176, 1178, 940 N.Y.S.2d 334 [2012] [internal quotation marks and citations omitted]; see Haselton Lbr. Co., Inc. v. Bette & Cring, LLC, 123 A.D.3d 1180, 1181, 998 N.Y.S.2d 491 [2014] ). If no timely objection is raised after the presentment of an account, the silence will deemed to be acquiescence and result in enforcement of the implied agreement to pay (see Levine v. Harriton v. Furrer, LLP, 92 A.D.3d at 1178, 940 N.Y.S.2d 334 ).

Plaintiff failed to meet its initial burden of proof with regard to Stanton, as Stanton directed that Courterback be billed for the work on his residence and there was no showing that Stanton was

34 N.Y.S.3d 651

personally liable for the sums sought in the invoices that followed (see e.g. Simplex Grinnell v. Ultimate Realty, LLC, 38 A.D.3d 600, 600–601, 832 N.Y.S.2d 244 [2007] ; M. Paladino,...