Hubbell, Inc. v. Lazy Swan Golf & Country Club LLC

• Decision Date: 29 October 2020
• Docket Number: 528962
• Citation: 134 N.Y.S.3d 536,187 A.D.3d 1448
• Parties: HUBBELL, INC., Appellant, v. LAZY SWAN GOLF & COUNTRY CLUB LLC, Also Known as Lazy Swan Golf & Country Club Village, LLC, et al., Respondents. (And Another Related Action.)
• Court: New York Supreme Court — Appellate Division

187 A.D.3d 1448

134 N.Y.S.3d 536

HUBBELL, INC., Appellant,

v. LAZY SWAN GOLF & COUNTRY CLUB LLC, Also Known as Lazy Swan Golf & Country Club Village, LLC, et al., Respondents.(And Another Related Action.)

528962

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

Calendar Date: September 15, 2020

Decided and Entered: October 29, 2020

Law Office of James M. Hartmann, Delhi (James M. Hartmann of counsel), for appellant.

Christopher P. Ragucci, Poughkeepsie, for respondents.

Before: Egan Jr., J.P., Mulvey, Aarons, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Mulvey, J. Appeal from an order of the Supreme Court (Northrup Jr., J.), entered April 1, 2019 in Delaware County, which, among other things, denied plaintiff's motion for partial summary judgment.

In 2015, plaintiff commenced this action against defendant Lazy Swan Golf & Country Club LLC (hereinafter Lazy Swan) and one of its principals, defendant Anthony Bacchi, asserting causes of action sounding in breach of contract, quantum meruit, unjust enrichment and account stated. The complaint arose from an alleged 2009 oral agreement that plaintiff would expand a golf course owned by Lazy Swan from a 9–hole course to an 18–hole course and from defendants' failure to pay after plaintiff completed the work in 2011. Plaintiff moved for, among other things, summary judgment with respect to its account stated cause of action and for an order precluding defendants from introducing certain evidence at trial. Supreme Court, among other things, denied plaintiff's motion. This appeal ensued.¹

Supreme Court properly denied the portion of plaintiff's motion seeking summary judgment on its account stated cause of action. "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" ( Jim–Mar Corp. v. Aquatic Constr., 195 A.D.2d 868, 869, 600 N.Y.S.2d 790 [1993] [citations omitted], lv denied 82 N.Y.2d 660, 605 N.Y.S.2d 6, 625 N.E.2d 591 [1993] ; see Haselton Lbr. Co., Inc. v. Bette & Cring, LLC, 123 A.D.3d 1180, 1182, 998 N.Y.S.2d 491 [2014] ; Whiteman, Osterman & Hanna, LLP v. Oppitz, 105 A.D.3d 1162, 1163, 963 N.Y.S.2d 432 [2013] ). However, "acquiescence to the account cannot be implied from that silence" where "the total amount owed was in dispute and [the dispute] should have been evident to [the] plaintiff" ( Chianis & Anderson Architects, PLLC v. Courterback Dev. Co., LLC, 140 A.D.3d 1286, 1289, 34 N.Y.S.3d 648 [2016], lv dismissed and denied 28 N.Y.3d 1021, 42 N.Y.S.3d 672, 65 N.E.3d 701 [2016] ; see Auburn Custom Millwork, Inc. v. Schmidt & Schmidt, Inc., 148 A.D.3d 1527, 1533–1534, 50 N.Y.S.3d 635 [2017] ).

Plaintiff met its initial burden by submitting proof that the parties entered into an agreement for plaintiff to be paid a set amount for the required work, that plaintiff completed such work, plaintiff sent 21 billing statements to defendants' correct address and defendants did not respond to those statements (see L.E.K. Consulting LLC v. Menlo Capital Group, LLC, 148 A.D.3d 527, 528, 52 N.Y.S.3d 1 [2017] ; Auburn Custom Millwork, Inc. v. Schmidt & Schmidt, Inc., 148 A.D.3d at 1533, 50 N.Y.S.3d 635 ; Chianis & Anderson Architects, PLLC v. Courterback Dev. Co., LLC, 140 A.D.3d at 1288, 34 N.Y.S.3d 648 ; Whiteman, Osterman & Hanna, LLP v. Oppitz, 105 A.D.3d at 1163, 963 N.Y.S.2d 432 ). After the burden shifted to them, defendants raised material issues of fact sufficient to preclude summary judgment. Although defendants admitted that they did not respond to plaintiff after receiving the billing statements, they submitted proof explaining that the amount was previously in dispute and plaintiff was aware of that dispute. The work was completed by plaintiff in approximately June 2011, but the invoice for the last work was not sent until 2012. Bacchi averred and testified that he met with plaintiff's president in 2012 and offered less than plaintiff demanded, with his offer reflecting costs and losses allegedly suffered as a result of plaintiff allegedly missing the deadline for completion of the work. According to Bacchi, at that meeting he disputed the amount owed and plaintiff's president acknowledged this dispute. When plaintiff later sent the 21 billing statements – beginning in 2013 and ending in 2015 – defendants did not respond because they had already expressed to plaintiff their disagreement regarding the amount that plaintiff asserted was owed. Therefore, defendants' silence at that time cannot be considered acquiescence as to the correctness of the billing statements. The record also contains conflicting information about whether the parties initially agreed upon the price plaintiff was to be paid for its work and, if so, the contract amount. Accordingly, Supreme Court properly determined that plaintiff was not entitled to summary judgment on its account stated cause of action (see Auburn Custom Millwork, Inc. v. Schmidt & Schmidt, Inc., 148 A.D.3d at 1533–1534, 50 N.Y.S.3d 635 ; Chianis & Anderson Architects, PLLC v. Courterback Dev. Co., LLC, 140 A.D.3d at 1289, 34 N.Y.S.3d 648 ).

Supreme Court did not abuse its discretion in denying the portion of plaintiff's motion seeking to preclude documentary evidence based on alleged disclosure violations. "Trial courts are...