Alliance Nat'l Ins. Co. v. Hagler

219 A.D.3d 1393

197 N.Y.S.3d 84

ALLIANCE NATIONAL INSURANCE COMPANY, respondent,

v.Daryl HAGLER, et al., appellants.

2019–09344

Index No. 602036/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—May 30, 2023

September 20, 2023

Lipsius–Benhaim Law, LLP, Kew Gardens, NY (Ira S. Lipsius and Alexander J. Sperber of counsel), for appellants.

New York Liquidation Bureau, New York, NY (Donald N. Cohen of counsel), for respondent.

BETSY BARROS, J.P., PAUL WOOTEN, WILLIAM G. FORD, BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action to recover damages for breach of contract and on an account stated, the defendants appeal from a judgment of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered July 22, 2019. The judgment, upon an order of the same court entered July 11, 2019, inter alia, granting those branches of the plaintiff's motion which were for summary judgment on the complaint and for a judgment declaring that the defendants Bridge Healthcare, LLC, Church Healthcare, LLC, and White Horse Healthcare, LLC, are contractually obligated to remit payments to the plaintiff for "Loss Funding obligations" as those payments become due, is in favor of the plaintiff and against the defendant Daryl Hagler in the total sum of $1,504,099.17, in favor of the plaintiff and against the defendant CareRide Paratransit, LLC, in the total sum of $253,095.45, in favor of the plaintiff and against the defendants Bridge Healthcare, LLC, Church Healthcare, LLC, and White Horse Healthcare, LLC, in the total sum of $968,174.17, and in favor of the plaintiff and against the remaining defendants in the total sum of $536,139.52.

ORDERED that the judgment is reversed, on the law, with costs, those branches of the plaintiff's motion which were for summary judgment on the complaint and for a judgment declaring that the defendants Bridge Healthcare, LLC, Church Healthcare, LLC, and White Horse Healthcare, LLC, are contractually obligated to remit payments to the plaintiff for "Loss Funding obligations" as those payments become due, are denied, and the order entered July 22, 2019, is modified accordingly.

In February 2018, the plaintiff commenced this action to recover damages for breach of contract and on an account stated, alleging, inter alia, that the defendants failed to make certain payments due under Workers' Compensation and Employers' Liability policies. Thereafter, the plaintiff moved, among other things, for summary judgment on the complaint and for a judgment declaring that the defendants Bridge Healthcare, LLC, Church Healthcare, LLC, and White Horse Healthcare, LLC (hereinafter collectively the Innova defendants), are contractually obligated to remit payments to the plaintiff for "Loss Funding obligations" as those payments become due. In an order entered July 11, 2019, the Supreme Court granted the plaintiff's motion. On July 22, 2019, the court entered a judgment in favor of the plaintiff and against the defendants. The defendants appeal.

"An account stated is an agreement between parties, based upon their prior transactions, with respect to the correctness of the account items and the specific balance due" ( Bank of Am., N.A. v. Ball, 188 A.D.3d 974, 974, 137 N.Y.S.3d 85 [internal quotation marks omitted]). "The agreement may be express or implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account" ( id. at 974, 137 N.Y.S.3d 85 ). "In order to establish a prima facie case to recover on an account stated, the plaintiff must establish that it submitted invoices and that the defendant received and retained the invoices without objection for an unreasonable period of time" ( id. ).

Here, the plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law on its causes of action to recover on an account stated, as the plaintiff failed to present evidence showing that the plaintiff's invoices for the amounts at issue were mailed to and received by the defendants (see Simplex Grinnell, LP v. Ruby Weston Manor, 59 A.D.3d 610, 611, 873 N.Y.S.2d 210 ). In support of its motion, the plaintiff submitted an affidavit from its underwriting manager regarding the mailing of invoices. However, the affiant did not attest to personal knowledge of the mailings or of...