Commercial Division Blog

Posted: July 10, 2020 / Categories Commercial, Account Stated

Account Stated Claim Fails Because of Plaintiff's Irregular Billing Practices

On July 1, 2020, Justice Scarpulla of the New York County Commercial Division issued a decision in Farago Advertising, Inc. v. Barnes & Noble, Inc., 2020 NY Slip Op. 32106(U), dismissing an account stated claim because of the plaintiff's irregular billing practices, explaining:

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. To prevail on a cause of action for account stated, the account statements must be regularly submitted.

Here, B&N has made its prima facie showing of entitlement to judgment as a matter of law by presenting evidence indicating that Farago's billing practices did not have the regularity that is required for an account stated cause of action. Farago has failed to raise an issue of fact as to this issue, thus I grant B&N summary judgment dismissing the account stated cause of action.

(Internal quotations and citations omitted) (emphasis added).

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.