                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 2, 2016                      521975
________________________________

CHIANIS & ANDERSON ARCHITECTS,
   PLLC,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

COURTERBACK DEVELOPMENT
   COMPANY, LLC, et al.,
                    Appellants.
________________________________


Calendar Date:   April 21, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

                             __________


      Hinman, Howard & Kattell LLP, Binghamton (Daniel R.       Norton
of counsel), for appellants.

      Levene Gouldin & Thompson, LLP, Binghamton (Michael R.
Wright of counsel), for respondent.

                             __________


Devine, J.

      Appeals (1) from an order of the Supreme Court (Tait, J.),
entered July 1, 2015 in Broome County, which, among other things,
granted plaintiff's motion for summary judgment, and (2) from the
judgment entered thereon.

      Plaintiff, an architectural and interior design firm, was
orally retained to perform services involving the residence of
defendant Raymond Stanton III in 2008. Stanton is a principal
and member of defendant Courterback Development Company, LLC, and
he directed plaintiff to submit its invoices to Courterback for
payment. Plaintiff did so and, while Courterback paid a number
of invoices in full, it failed to make payment on invoices
                              -2-                521975

submitted in December 2008 and February 2009.

      Courterback also became involved in the development of a
manufacturing facility in conjunction with Impress USA, Inc., a
role that was later filled by defendant R2 Development Company,
LLC. Pursuant to an oral agreement that was later confirmed in
writing, Courterback and R2 retained plaintiff to perform
architectural and engineering work on the project. Plaintiff
submitted invoices for its work to Courterback, which failed to
make full payment on several submitted in March 2009. Impress
terminated the involvement of Courterback and R2 in the project
shortly before those invoices were submitted, a state of affairs
that culminated in Courterback and R2 bringing suit against
Impress in 2011.

      Plaintiff thereafter commenced this action for, among other
things, account stated to recover moneys allegedly owed by
defendants on the Stanton and Impress projects. Following
joinder of issue, plaintiff moved for summary judgment upon the
account stated claims. Defendants opposed that request and
cross-moved for a plethora of relief, including consolidation of
this action with the 2011 action and leave to serve an amended
answer with counterclaims stemming from plaintiff's allegedly
improper business relations with Impress. Supreme Court granted
plaintiff's motion and denied defendants' cross motion as moot.
Defendants appeal from that order and the judgment entered
thereon.

      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," and
"may be implied from the retention of an account rendered for an
unreasonable period of time without objection and from the
surrounding circumstances" (Levine v Harriton & Furrer, LLP, 92
AD3d 1176, 1178 [2012] [internal quotation marks and citations
omitted]; see Haselton Lbr. Co., Inc. v Bette & Cring, LLC, 123
AD3d 1180, 1181 [2014]). If no timely objection is raised after
the presentment of an account, the silence will deemed to be
acquiescence and result in enforcement of the implied agreement
to pay (see Levine v Harriton v Furrer, LLP, 92 AD3d at 1178).
                              -3-                521975

      Plaintiff failed to meet its initial burden of proof with
regard to Stanton, as Stanton directed that Courterback be billed
for the work on his residence and there was no showing that
Stanton was personally liable for the sums sought in the invoices
that followed (see e.g. Simplex Grinnell v Ultimate Realty, LLC,
38 AD3d 600, 600-601 [2007]; M. Paladino, Inc. v Lucchese & Son
Contr. Corp., 247 AD2d 515, 516 [1998]). Supreme Court therefore
should have denied that part of the motion seeking summary
judgment against Stanton "regardless of the sufficiency of the
opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 NY2d
851, 853 [1985]).

      Plaintiff did meet its initial burden with regard to
Courterback on both projects, and R2 on the Impress project.
Plaintiff submitted proof that it was retained to work on both
projects, that the relevant invoices were addressed to and
received by Courterback and that Courterback neither paid the
invoices nor objected to them (see Schlenker v Cascino, 124 AD3d
1152, 1153 [2015], lv denied 25 NY3d 904 [2015]; Haselton Lbr.
Co., Inc. v Bette & Cring, LLC, 123 AD3d at 1181-1182).
Likewise, in light of a March 2009 agreement in which R2
acknowledged that it and Courterback had retained plaintiff to
work on the Impress project and that both were "responsible for
all applicable fees for the work performed [by plaintiff] to
date" on that project, plaintiff met its initial burden with
regard to R2. The burden, as such, shifted to Courterback and R2
to raise material questions of fact (see Alvarez v Prospect
Hosp., 68 NY2d 320, 324 [1986]).

      Defendants responded with the affidavits of Courterback
director Kerry O'Brien, who averred that Courterback was
responsible for plaintiff's work on the Stanton project and that
it promptly registered objections to the amount sought in the
December 2008 invoice. O'Brien detailed those objections by
stating that he had concerns about the quality of the work and
the amount of work that the invoice claimed had been performed.
A May 2009 email additionally refers to O'Brien's "problem" with
the December 2008 invoice and corroborates that objections were
indeed lodged against it. Moreover, while O'Brien did not
specifically object to the February 2009 invoice, acquiescence to
the account cannot be implied from that silence given his
                              -4-                521975

plausible explanation "that [Courterback was] not going to pay
any additional invoices" while the total amount owed was in
dispute and that such should have been evident to plaintiff. In
our view, the foregoing established the existence of material
questions of fact with regard to the account stated claim against
Courterback relating to the Stanton residence, and summary
judgment on that claim should have been denied in its entirety
(see Accent Collections, Inc. v Cappelli Enters., Inc., 94 AD3d
1026, 1026-1027 [2012]; Yannelli, Zevin & Civardi v Sakol, 298
AD2d 579, 580-581 [2002]; Epstein v Turecamo, 258 AD2d 502, 503
[1999]).

      With regard to the Impress project, O'Brien stated that
Impress was still using the work product generated by plaintiff
after the relationship between Impress, Courterback and R2
soured, and that the 2011 action against Impress sought damages
related to that allegedly improper use. He accordingly believed
that plaintiff would wait for the outcome of the Impress
litigation before seeking payment for its work, a belief that he
claims led to his failure to inspect plaintiff's invoices for
accuracy until this action was commenced in 2013. This evidence,
while it gave context to the relationships between the various
parties, did nothing to show that Courterback and R2 made a
timely objection to the invoices. Supreme Court was accordingly
right to award summary judgment to plaintiff with regard to the
account stated claim against Courterback and R2 stemming from the
Impress project (see Darby & Darby v VSI Intl., 95 NY2d 308, 315
[2000]; George S. May Intl. Co. v Thirsty Moose, Inc., 19 AD3d
721, 722 [2005]).

      Turning to the issues advanced in defendants' cross motion,
defendants sought to consolidate this action with the 2011 action
against Impress. Inasmuch as the 2011 action seeks damages
flowing from the souring of the relationship between Courterback,
R2 and Impress, and bears no connection to the issues raised in
this action regarding how much money plaintiff is owed for its
earlier work, consolidation would be improper (see Weiss &
Biheller, MDSE, Corp. v Preciosa USA, Inc., 127 AD3d 1176, 1176
[2015]; Five Riverside Dr. Towers Corp. v Chenango, Ltd., 111
AD2d 1025, 1026 [1985). Defendants further failed to provide
"some evidence of merit" to support their proposed counterclaims
                              -5-                  521975

and, as a result, leave to serve an amended answer containing
them was correctly denied (Krouner v Travis, 290 AD2d 917, 919
[2002]; see Matter of Miller v Goord, 1 AD3d 647, 648 [2003];
Curtin v Community Health Plan, 276 AD2d 884, 886 [2000]).

     McCarthy, J.P., Egan Jr., Lynch and Mulvey, JJ., concur.



      ORDERED that the order and judgment are modified, on the
law, without costs, by reversing so much thereof as granted
plaintiff's motion for summary judgment on the third cause of
action against defendants Courterback Development Company, LLC
and Raymond Stanton III; motion denied to that extent; and, as so
modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
