Commercial Division Blog

Posted: February 13, 2019 / Categories Commercial, Account Stated

Account Stated Claim Fails Without Evidence that Defendant Received Invoices and Did Not Object Within a Reasonable Time

On December 4, 2018, Justice Grays of the Queens County Commercial Division issued a decision in Silver Oak Realty Group., Inc. v Yan Kam Yeung, 2018 NY Slip Op. 33481(U), rejecting an account stated claim for lack of evidence that the defendant received the invoices and did not object within a reasonable time, explaining:

An account stated is an account balanced and rendered, with an assent to the balance express or implied; so that the demand is essentially the same as if a promissory note had been given for the balance. An essential element to an account stated cause of action is that the parties came to an agreement with respect to the amount of the balance due. While the mere silence and failure to object to an account stated cannot be construed as an agreement to the correctness of the account, the factual situation attending the particular transaction may be such that, in the absence of an objection made within a reasonable time, an implied account stated may be found.

In support of the within motion for partial summary judgment, plaintiff submits an affidavit from Steven Wu Kuo, a shareholder and Vice-President of said corporation; copies of the invoices attached to the complaint; a copy of the pleadings; and a copy of the lease and rider agreement. Mr. Kuo's affidavit is devoid of any facts and is offered solely as a vehicle for the submission of said invoices.

. . .

Plaintiff has also failed to establish its prima facie entitlement to judgment as a matter of law on the cause of action to recover on an account stated, as it submitted no evidence that the parties had come to an agreement with respect to the amount of the balance due. In addition, plaintiff has not submitted any evidence establishing that the subject invoices were mailed to the defendants, that the defendants received said invoices, and that the defendants retained said invoices for an unreasonable period of time without objection such that the only reasonable inference would be that they assented to the correctness of the account items and balance due.

(Internal quotations and citations omitted).

People sometimes are surprised to learn that if they do not complain about a bill they receive, they can be found to have agreed to it. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have questions about a claim based on un-objected-to invoices.