        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

289
CA 14-00940
PRESENT: SCUDDER, P.J., LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


SCHWERZMANN & WISE, P.C., PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

TOWN OF HOUNSFIELD, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


PAUL F. SHANAHAN, PITTSFORD, D.J. & J.A. CIRANDO, ESQS., SYRACUSE
(JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.

BOND, SCHOENECK & KING, PLLC, SYRACUSE (JONATHAN B. FELLOWS OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Jefferson County
(James P. McClusky, J.), entered January 30, 2014. The judgment,
among other things, awarded plaintiff the sum of $182,137.89 as
against defendant.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs and the motion is
denied.

     Memorandum: Plaintiff law firm commenced this action seeking to
collect unpaid legal fees allegedly owed by defendant for services
rendered between December 2009 and July 2012, asserting causes of
action for breach of contract, an account stated, unjust enrichment,
and quantum meruit. Plaintiff later moved for summary judgment on its
account stated cause of action, and Supreme Court granted the motion.
We now reverse.

     “ ‘An account stated 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’ ” (Erdman Anthony &
Assoc. v Barkstrom, 298 AD2d 981, 981; see Sisters of Charity Hosp. of
Buffalo v Riley, 231 AD2d 272, 282). “An essential element of an
account stated is an agreement with respect to the amount of the
balance due” (Erdman Anthony & Assoc., 298 AD2d at 981; see Interman
Indus. Prods. v R. S. M. Electron Power, 37 NY2d 151, 153-154). Such
an agreement may be implied “if a party receiving a statement of
account keeps it without objecting to it within a reasonable time
because the party receiving the account is bound to examine the
statement and object to it, if objection there be” (Chisholm-Ryder Co.
v Sommer & Sommer, 70 AD2d 429, 431; see Interman Indus. Prods., 37
NY2d at 153-154).
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                                                         CA 14-00940

     “Whether a bill has been held without objection for a period of
time sufficient to give rise to an inference of assent, in light of
all the circumstances presented, is ordinarily a question of fact, and
becomes a question of law only in those cases where only one inference
is rationally possible” (Legum v Ruthen, 211 AD2d 701, 703). While
the failure to object to a bill may demonstrate an implicit agreement
to the amount, there are also instances in which “accounts may be
rendered without reasonable expectation that they will be scrutinized
before they are accepted. Then mere silence and failure to object
cannot be construed as an agreement upon the correctness of the
accounts” (Corr v Hoffman, 256 NY 254, 266).

     Here, plaintiff failed to establish in support of its motion that
the only rational inference to be drawn from defendant’s retention of
the bills was its agreement to pay them. Although plaintiff was
providing legal services on behalf of defendant, a third party,
Upstate Power Corporation (Upstate), had agreed in 2008 to reimburse
defendant for legal costs associated with a proposed wind farm. In
support of its motion, plaintiff submitted monthly unpaid bills it
sent to defendant between January 2010 through August 2012 to which
defendant did not object. A number of the bills, however, were sent
directly to Upstate for payment, with a “copy” having been sent to
defendant. Notably, none of the bills has a running total; rather,
the “balance due” on each bill was the fee allegedly owed for that
particular month. Defendant could thus reasonably have concluded that
Upstate was paying the bills all along. Indeed, Upstate had
previously paid plaintiff $76,231.27 for its legal fees, and there is
no indication in the record that plaintiff informed defendant that its
subsequent bills were not being paid. It was not until October 5,
2012, after defendant terminated plaintiff’s services, that plaintiff
notified defendant of the accumulated total of unpaid fees. Under the
circumstances, we conclude that there is an issue of fact whether
defendant’s silence upon receiving the bills may be construed as
acceptance of the amount due (see Legum, 211 AD2d at 703-704).




Entered:   March 27, 2015                       Frances E. Cafarell
                                                Clerk of the Court
