J.B.H., Inc. v. Godinez

• Decision Date: 02 November 2006
• Docket Number: 500122.
• Citation: 823 N.Y.S.2d 576,34 A.D.3d 873,2006 NY Slip Op 07929
• Parties: J.B.H., INC., Respondent, v. GILBERT GODINEZ et al., Appellants.
• Court: New York Supreme Court — Appellate Division

34 A.D.3d 873

823 N.Y.S.2d 576

2006 NY Slip Op 07929

J.B.H., INC., Respondent, v. GILBERT GODINEZ et al., Appellants.

500122.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided November 2, 2006.

Appeal from an order of the Supreme Court (Spargo, J.), entered April 28, 2005 in Albany County, which, inter alia, partially granted plaintiff's motion for summary judgment.

Crew III, J.P.

In December 2000, defendants' basement flooded, allegedly due to the Town of Colonie's negligent design, construction and maintenance of a pond located approximately 200 feet north of defendants' residence. Upon learning that their insurance company would not cover the resulting damage, defendants contacted an independent adjuster who, in turn, apparently contacted plaintiff, a disaster recovery services company, to perform the necessary cleanup. Certain of plaintiff's employees appeared at defendants' home, whereupon defendant Lilian Godinez (hereinafter Godinez) authorized them to remove "[a]nything that was wet" from the basement. At some point thereafter, defendant Gilbert Godinez executed a work authorization form, which listed the Town of Colonie as defendants' insurance company, agreeing "to be responsible for any deductible my (our) insurance company does not cover." Godinez acknowledged receiving at least one invoice from plaintiff, which neither she nor her husband paid. According to Godinez, she forwarded the invoice to the Town Supervisor for payment and, in January 2002, her husband sent plaintiff's general manager a letter advising that "the matter is in progress." Although Godinez could not specifically recall receiving additional invoices or correspondence from plaintiff, she acknowledged that it was possible, stating that the receipt of such documents from plaintiff would not have concerned her particularly given that she deemed the invoices to be "fake" and found plaintiff's attempts to hold her and/or her husband financially responsible for such charges "an insult."

Following various demands for payment, plaintiff commenced this action in December 2003 for breach of contract, account stated and quantum meruit seeking to recover the moneys allegedly owed by defendants. Following joinder of issue and discovery, plaintiff moved for summary judgment, and defendants cross-moved for summary judgment dismissing the complaint. Supreme Court granted plaintiff's motion for summary judgment on its cause of action for account stated and denied defendants' cross motion. This appeal by defendants ensued.

We affirm. "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" (Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869 [1993], lv denied 82 NY2d 660 [1993] [citations omitted]; see Citibank [S.D.] v Jones, 272 AD2d 815, 815-816 [2000], lv denied 95 NY2d 764 [2000]). Such an agreement, in turn, "may be express or ... 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., supra at 869). Although a cause of action for account stated will fail "[w]here either no account has been presented or there is any dispute regarding the correctness of the account" (M & A Constr. Corp. v McTague, 21 AD3d 610, 611-612 [2005]), "[s]ilence is deemed acquiescence and warrants enforcement of the implied agreement to pay" (Chisholm-Ryder Co. v Sommer & Sommer, 70 AD2d 429, 431 [1979]).

In support of its motion for summary judgment, plaintiff tendered an affidavit from its president, wherein he averred that plaintiff began billing defendants in February 2001, continued to bill them thereafter and "did not receive any objection to the bills until commencement of this lawsuit." A copy of the various invoices, statements of accounts and correspondence directed to defendants also accompanied plaintiff's motion papers. As noted previously, Godinez admittedly received at least one invoice from plaintiff—addressed to both her and her husband, which neither she nor her husband paid....