Commercial Division Blog

Posted: May 23, 2020 / Categories Commercial, Contracts, Account Stated

Account Stated Claim Dismissed As Duplicative of Breach of Contract Claim

On May 6, 2020, Justice Ostrager of the New York County Commercial Division issued a decision in St. George Outlet Dev., LLC v. Casino Mech. Corp., 2020 NY Slip Op. 50516(U), dismissing an account stated claim because it was duplicative of a breach of contract claim, explaining:

Plaintiffs first seek to dismiss the Second Counterclaim, which alleges an Account Stated against Empire in the amount of $1,623,686.08 based on invoices purportedly sent and not challenged as incorrect within a reasonable time. Empire seeks to dismiss the Account Stated Counterclaim as duplicative of the First Counterclaim for Breach of Contract, which demands the exact same amount of money, citing cases such as Professional Merchant Advance Capital, LLC. v C. Care Services, LLC, 2015 WL 4392081 (SDNY July 15, 2015) and Hagman v. Swenson, 149 AD3d 1, 4 (1st Dep't 2017).

Casino in its opposition disputes that the counterclaims are duplicative, contending that the Subcontracts included specific amounts whereas the Account Stated claim is based on change orders and adjustments to the Subcontract prices included in invoices. However, as Casino cannot reasonably dispute that the written Subcontracts include a procedure for change orders and that the Account Stated claim covers the same issues and damages as the Breach of Contract claim, the Second Counterclaim sounding in Account Stated must be dismissed as duplicative of the First Counterclaim.

(Internal 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.