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Peeq Imaging, LLC v. National Communications Group

United States District Court, S.D. New York

January 9, 2020




         Plaintiff 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.

         Factual and Procedural Background[1]

         Peeq is 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, 7.)

         Peeq 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.

         On 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.)

         The 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.

         Legal Standard

         A "[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.

         "The 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).

         "All 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.


         Peeq 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.

         To 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).[2] "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 ...

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