United States District Court, S.D. New York
PEEQ IMAGING, LLC. Plaintiff,
NATIONAL COMMUNICATIONS GROUP, Defendant.
ORDER AND JUDGMENT
W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE.
Peeq Imaging, LLC ("Plaintiff' or "Peeq")
filed this action for account stated, goods sold and
delivered, and quantum meruit against Defendant National
Communications Group ("Defendant" or
"NCG"). Presently before this Court is
Plaintiff's motion for summary judgment, which seeks
judgment in the amount of $147, 363.01 plus $400 in court
costs. (Dkt. 35). For the reasons that follow,
Plaintiff's motion is GRANTED.
and Procedural Background
a Maryland limited liability company with headquarters in
Alexandria, Virginia. NCG is a New York corporation that
provides printing and reprographic services such as banners
and signs. (See Cockrell Decl., Exh. A, Statement of Account
listing project names and numbers.) Peeq and NCG entered into
a contract for Peeq to provide graphics and marketing goods
and services to NCG. (Id. ¶ 3 and Exh. A.) From
August 2, 2017 through August 14, 2018, Peeq provided goods
and services to NCG in the amount of $147, 363.01.
(Id. ¶ 4. and Exh. A.) NCG accepted Peeq's
goods and services and at no time refuted the accuracy of
Peeq's statement of account. (Id. ¶ 6.) NCG
failed to pay Peeq the balance of its account stated in the
total amount of $147, 363.01. (Id. ¶¶ 5,
filed its Complaint on September 20, 2018. (Dkt. 8.) NCG
answered on November 28, 2019. (Dkt. 16.) NCG did not respond
to Peeq's discovery requests. (See Motion for
Summary (Dkt. 35) at 1.) This matter was initially assigned
to the Honorable Andrew L. Carter, U.S.D.J., and then
referred to the undersigned for general pretrial management.
(Dkt. 26.) On June 12, 2019, the parties consented to the
jurisdiction of the undersigned for all purposes pursuant to
28 U.S.C. § 636(c). (Dkt. 32.) Peeq filed the instant
motion for summary judgment on November 12, 2019. (Dkt. 35.)
NCG filed no response to the motion.
November 19, 2019, NCG's counsel filed an application to
withdraw as counsel based, in part, on non-payment of
services rendered. (Dkt. 41.) NCG's counsel further
explained that NCG, by its President, had provided
"written directive to take no further action in
defending this litigation based upon the fact that NCG is no
longer an operating entity and there are no funds available
to continue defending [this] litigation." (Affirmation
of Melanie A. Fitzgerald in Support of Request to be Relieved
as Counsel to Defend National Communications Group, dated
Nov. 19, 2019 ("Fitzgerald Aff.") (Dkt. 41) at
¶¶ 4, 13.)
Court entered an order granting NCG counsel's motion to
withdraw on November 20, 2019. (Dkt. 43.) That order also
admonished that "[b]ecause it is a business entity,
Defendant cannot appear in this litigation without
representation of counsel. Accordingly, by December 16, 2019,
any new counsel for Defendant shall make an appearance in the
case. In the absence of any such appearance, the Court will
proceed to resolve the pending motion for summary
judgment." (Id.) Despite timely service of the
order (Dkt. 44), no counsel appeared for NCG, and NCG made no
request for other relief.
"[c]ourt shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a); see Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The
Court's task is not to resolve contested issues of fact,
but rather to determine whether there exists any disputed
issue of material fact. Donahue v. Windsor Locks Board of
Fire Commissioners, 834 F.2d 54, 58 (2d Cir. 1987);
Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11
(2d Cir. 1986), cert, denied, 480 U.S. 932 (1987).
"A fact is material when it might affect the outcome of
the suit under governing law." Gorham-DiMaggio v.
Countrywide Home Loans, Inc., 421 Fed.Appx. 97, 101 (2d
Cir. 2011) (quoting McCarthy v. Dun & Bradstreet
Corp., 482 F.3d 184, 202 (2d Cir. 2007)) (internal
quotations omitted). A dispute "is 'genuine' ...
if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson, 477
U.S. at 248.
moving party bears the initial burden of demonstrating
'the absence of a genuine issue of material
fact."' F.D.I.C. v. Great American Insurance.
Co., 607 F.3d 288, 292 (2d Cir. 2010) (quoting
Celotex Corp., 477 U.S. at 323). Once this burden is
met, "the opposing party must come forward with specific
evidence demonstrating the existence of a genuine dispute of
material fact." Id. (citing Anderson,
477 U.S. at 249). "A party asserting that a fact cannot
be or is genuinely disputed must support the assertion"
either by "citing to particular parts of materials in
the record" or by "showing that the materials cited
do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible
evidence to support the fact." Fed.R.Civ.P. 56(c)(1).
evidence submitted on the motion is to be construed in the
manner most favorable to the nonmoving party." Okin
v. Village of Cornwall-On-Hudson Police Department, 577
F.3d 415, 427 (2d Cir. 2009) (quoting Horvath v. Westport
Library Association, 362 F.3d 147, 151 (2d Cir. 2004))
(internal quotations omitted). However, "[t]o defeat a
summary judgment motion, the nonmoving party 'must do
more than simply show that there is some metaphysical doubt
as to the material facts,' and 'may not rely on
conclusory allegations or unsubstantiated
speculation.'" Great American Insurance
Co., 607 F.3d at 292 (internal citations omitted) (first
quoting Matsushita Electrical Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986), then quoting
Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.
1998)). While "disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment[, ] [f]actual disputes
that are irrelevant or unnecessary will not be counted."
Anderson, 477 U.S. at 248 (internal citations
omitted); see also Knight, 804 F.2d at 11-12.
has established the absence of disputed issue of material
fact and that it is entitled to summary judgment as a matter
of law. NCG has not submitted any evidence to contradict the
evidence advanced by Peeq and has declined to continue
defending this action.
prevail on a claim for account stated, a plaintiff must
establish the following elements: "(1) an account was
presented; (2) it was accepted as correct; and (3) [the]
debtor promised to pay the amount stated." Yiwu
Lizhisha Accessories Co., Ltd. v. Jjamz, Inc., 336
F.Supp.3d 179, 183 (S.D.N.Y. 2018) (internal citations and
quotations omitted) (brackets in original); see also IMG
Fragrance Brands, LLC v. CDO 2003-1 Limited, 679
F.Supp.2d 395, 411 (S.D.N.Y. 2009). "The second and third
requirements (acceptance of the account as correct and a
promise to pay the amount stated) may be implied if a party
receiving a statement of account keeps it without objecting
to it within a reasonable time." Yiwu, 336