Haselton Lumber Co. v. Bette & Cring, LLC

123 A.D.3d 1180

998 N.Y.S.2d 491

2014 N.Y. Slip Op. 08526

HASELTON LUMBER COMPANY, INC., Appellant

v.BETTE & CRING, LLC, et al., Respondents.

518101

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

Dec. 4, 2014.

Briggs Norfolk, LLP, Lake Placid (Ronald J. Briggs of counsel) and Powers & Santola, LLP, Albany (Michael J. Hutter of counsel), for appellant.

Daniel L. Doherty, Albany, for respondents.

Before: McCARTHY, J.P., EGAN JR., LYNCH, DEVINE and CLARK, JJ.

Opinion

EGAN JR., J.

Appeal from an order of the Supreme Court (Muller, J.), entered September 26, 2013 in Essex County, which, among other things, denied plaintiff's motion for summary judgment.

Plaintiff is a family-owned business located in the Town of Wilmington, Essex County that sells, distributes and manufactures building supplies for use in the construction industry. In late October 2010, plaintiff was contacted by a representative of defendant Bette & Cring, LLC (hereinafter B & C) to arrange for the purchase of building materials for use in a local housing development. As was its custom, plaintiff provided B & C with a business credit application and guarantee outlining the terms and conditions under which it would extend credit for the purchase of materials and supplies. The credit application and personal guarantee were executed on behalf of B & C by defendant Peter Bette in November 2010, and B & C thereafter began purchasing materials from plaintiff.

Over the course of the next several months, plaintiff provided B & C with various building materials and, in conjunction therewith, generated invoices and monthly billing statements itemizing the charges to B & C's account and any payments tendered with respect thereto. After B & C allegedly failed to pay certain invoices generated between April 2011 and June 2011, plaintiff commenced this action against defendants seeking to recover the outstanding balance due ($12,196.91), together with the finance charges, counsel fees and related costs provided for in the credit application and personal guarantee. Following joinder of issue, plaintiff moved for summary judgment, and defendants cross-moved for similar relief. Supreme Court denied the respective motions, prompting this appeal by plaintiff.

Plaintiff's first cause of action—asserted against B & C—is for an account stated, which “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” (Roe v. Roe, 117 A.D.3d 1217, 1219, 985 N.Y.S.2d 335 [2014] [internal quotation marks and citations omitted]; accord Levine v. Harriton & Furrer, LLP, 92 A.D.3d 1176, 1178, 940 N.Y.S.2d 334 [2012] ). In this regard, “[a]n account stated may be implied from the retention of an account rendered for an unreasonable period of time without objection and from the surrounding circumstances. When no timely objection is raised after an account is presented, silence is deemed acquiescence and warrants enforcement of the implied agreement to pay” (Levine v. Harriton & Furrer, LLP, 92 A.D.3d at 1178, 940 N.Y.S.2d 334 [internal quotation marks and citations omitted]; see Chisholm–Ryder Co. v. Sommer & Sommer, 70 A.D.2d 429, 431, 421 N.Y.S.2d 455 [1979] ; cf. Antokol & Coffin v. Myers, 86 A.D.3d 876, 877, 927 N.Y.S.2d 723 [2011] ).

Here, in support of its motion for summary judgment, plaintiff submitted, among other things, copies of the relevant invoices and billing statements detailing the unpaid balance due and owing ($12,196.91), as well as the affidavit of its president, Samuel Haselton. After explaining the manner in which bills were tendered to B & C and any corresponding remittances were credited to B & C's account, Haselton averred that, between May 1, 2011 and July 1, 2011, plaintiff issued billing statements itemizing the various invoices generated in connection with B & C's purchase of materials. Although those billing statements reflect that B & C paid certain of the invoices in whole or in part, Haselton averred that, as of February 28, 2013, B & C had failed to tender any payment with respect to 17 outstanding invoices totaling $12,196.91—exclusive of the applicable finance charges. Haselton further averred that B & C never objected to the imposition of the accrued finance charges and, although defendants now argue that plaintiff failed to properly credit certain payments made, defendants do not dispute that the invoices were received; more to the point, nothing in the record suggests that defendants objected to the actual billing statements or contested the balance due until after plaintiff commenced this action. Notably, neither partial payment nor a subsequent offer to settle—unaccompanied by a specific complaint regarding the propriety of the sum due—is sufficient to constitute an objection to the payment of the account rendered (see Jim–Mar Corp. v. Aquatic Constr., 195 A.D.2d 868, 870, 600 N.Y.S.2d 790 [1993], lv. denied 82 N.Y.2d 660, 605 N.Y.S.2d 6, 625 N.E.2d 591 [1993] ). Accordingly, we are satisfied that plaintiff discharged its initial burden of demonstrating its entitlement to summary judgment based upon an account stated.

In opposition, defendants contend that B & C was not properly credited for certain payments made. A review of the relevant billing statements, however, reveals that the payment at issue ($11,882.36) is reflected on the March 31, 2011 billing statement issued to B & C as credits in the amount of $11,420.51 (invoice No. 16732), $122.71 (invoice No. 16657), $39.22 (invoice No. 16755) and $299.92 (invoice No. 16779) and, further, that none of these invoices appear on the final billing statement or otherwise are included in the sum now claimed to be due and owing ($12,196.91). To the...