Commercial Division Blog

Posted: September 17, 2019 / Categories Commercial, Account Stated

Account Stated Claim Cannot Create Liability Where None Exists

On September 10, 2019, the First Department issued a decision in Cushman & Wakefield, Inc. v. Kadmon Corp., LLC, 2019 NY Slip Op. 06456, holding that an account stated cannot create liability where none exists, explaining:

Plaintiff Cushman & Wakefield, Inc's (Cushman) August 17, 2017 invoice, in addition to the September 14, 2017 demand letter, were sufficient to create an account stated. Nevertheless, a discrete invoice does not evidence a mutually agreed upon balanced account, as where an account is rendered showing a balance, the party receiving it must, within a reasonable time, examine it and object, if he disputes its correctness. If he omits to do so, he will be deemed by his silence to have acquiesced, and will be bound by it as an account stated, unless fraud, mistake or other equitable considerations are shown. The affidavit of Kadmon's representative, in which he averred that after Cushman made a demand for commission, I gratuitously made a counter offer of $100,000 on behalf of Kadmon because of Kadmon's relationship with the Landlord and Mr. Hartman, and in recognition of the time and effort expended, was sufficient to defeat summary judgment at this juncture.

Moreover, an account stated cannot be used to create liability where none otherwise exists. The circumstances here - where Kadmon denied that it should have to pay a commission because Cushman had nothing to do with the rental to a new tenant - indicate that the parties might not have reached a meeting of the minds on the final amount owed.

(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.