Appeal from a judgment of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered June 17, 2008.
Bank of Am., N.A. USA v Hyatt
Decided on August 16, 2011
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ
The judgment, entered pursuant to an order of the same court dated May 9, 2008 which, among other things, granted plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $12,458.39.
ORDERED that the judgment is modified by reducing the amount awarded to plaintiff from the principal sum of $12,458.39 to the principal sum of $8,288.79 and by vacating so much of the order as granted plaintiff's motion for summary judgment in the principal sum of $12,458.39 and substituting therefor a provision granting plaintiff's motion for summary judgment to the extent of awarding plaintiff judgment in the principal sum of $8,288.79; as so modified, the judgment is affirmed, without costs.
In this action to recover the principal sum of $12,458.39 based upon a breach of a credit card agreement and upon an account stated, the Civil Court, by order dated May 9, 2008, granted plaintiff's motions to restore the matter to the calendar and for summary judgment in the principal sum of $12,458.39. A judgment was subsequently entered on June 17, 2008, awarding plaintiff the principal sum of $12,458.39. On this appeal from the judgment, defendant challenges only the portion of the order that granted plaintiff's motion for summary judgment.
" [A]n account stated is an account balanced and rendered, with an assent to the balance express or implied; so that the demand is essentially the same as if a promissory note had been given for the balance . . . [W]hile the mere silence and failure to object to an account stated cannot be construed as an agreement to the correctness of the account, the factual situation attending the particular transactions may be such that, in the absence of an objection made within a reasonable time, an implied account stated may be found" (Yannelli, Zevin & Civardi v Sakol, 298 AD2d 579, 580  [internal quotation marks omitted]). "An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account" (American Express Centurion Bank v Cutler, 81 AD3d 761, 762 ; see Landau v Weissman, 78 AD3d 661 ).
Upon a review of the record, we find that plaintiff has demonstrated its entitlement to judgment as a matter of law only on its cause of action based upon an account stated and only in the sum of $8,228.79. The statement of account indicating a balance due in the sum of $8,288.79 was the last statement sent to defendant and retained by him without objection (see Citibank [S.D.] v Jones, 272 AD2d 815 ).
Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: August ...