Opinion
9628 Index 652055/18
09-10-2019
CUSHMAN & WAKEFIELD, INC., Plaintiff–Appellant, v. KADMON CORPORATION, LLC doing business as Kadmon, LLC, Defendant–Respondent.
Steven Landy & Associates, PLLC, New York (David A. Wolf of counsel), for appellant. Axelrod, Fingerhut & Dennis, New York (Osman Dennis of counsel), for respondent.
Steven Landy & Associates, PLLC, New York (David A. Wolf of counsel), for appellant.
Axelrod, Fingerhut & Dennis, New York (Osman Dennis of counsel), for respondent.
Sweeny, J.P., Manzanet–Daniels, Kapnick, Oing, Singh, JJ.
Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered February 4, 2019, which to the extent appealed from, as limited by the briefs, denied plaintiff's motion for summary judgment on its cause of action for an account stated, unanimously affirmed, without costs.
Plaintiff Cushman & Wakefield, Inc's (Cushman) August 17, 2017 invoice, in addition to the September 14, 2017 demand letter, were sufficient to create an account stated (see Rosenberg Selsman Rosenzweig & Co. v. Slutsker, 278 A.D.2d 145, 145, 718 N.Y.S.2d 317 [1st Dept. 2000] ). Nevertheless, a discrete invoice does not evidence a mutually agreed upon balanced account, as "where an account is rendered showing a balance, the party receiving it must, within a reasonable time, examine it and object, if he disputes its correctness. If he omits to do so, he will be deemed by his silence to have acquiesced, and will be bound by it as an account stated, unless fraud, mistake or other equitable considerations are shown" ( Shaw v. Silver, 95 A.D.3d 416, 416, 943 N.Y.S.2d 89 [1st Dept. 2012] ). The affidavit of Kadmon's representative, in which he averred that "after Cushman made a demand for commission, I gratuitously made a counter offer of $100,000 on behalf of Kadmon because of Kadmon's relationship with the Landlord and Mr. Hartman, and in recognition of the time and effort expended," was sufficient to defeat summary judgment at this juncture ( Levisohn, Lerner, Berger & Langsam v. Gottlieb, 309 A.D.2d 668, 668, 765 N.Y.S.2d 873 [1st Dept. 2003], lv denied 1 N.Y.3d 509, 777 N.Y.S.2d 19, 808 N.E.2d 1278 [2004] ; Prudential Bldg. Maintenance Corp. v. Siedman Assoc., 86 A.D.2d 519, 519, 445 N.Y.S.2d 758 [1st Dept. 1982] ).
Moreover, an account stated "cannot be used to create liability where none otherwise exists" ( DL Marble & Granite Inc. v. Madison Park Owner, LLC, 105 A.D.3d 479, 479, 963 N.Y.S.2d 94 [1st Dept. 2013] ). The circumstances here—where Kadmon denied that it should have to pay a commission because Cushman had nothing to do with the rental to a new tenant—indicate that the parties might not have reached a "meeting of the minds" on the final amount owed ( Prudential Bldg., 86 A.D.2d at 519, 445 N.Y.S.2d 758 ). We find that Supreme Court did not abuse its discretion in considering Kadmon's untimely rule 19–A statement when it denied Cushman's motion for summary judgment ( Abreu v. Barking & Assoc. Realty, Inc., 69 A.D.3d 420, 421, 893 N.Y.S.2d 25 [1st Dept. 2010] ).