An account stated.

Practice point: There was no prima facie showing of entitlement to judgment as a matter of law because the plaintiff did not submit sufficient evidence to establish that the defendant retained the account statements without objecting to them within a reasonable period of time. While an employee who reviewed the plaintiff's records stated by affidavit that the credit card statements were mailed to the defendant on a monthly basis, she failed to aver that the defendant retained these statements for a reasonable period of time without objecting to them. The plaintiff also submitted three checks as evidence of partial payments on the account statements. Two of these checks, however, were for payment of the full amount owed on the account at the time and predated the disputed charges. The third check, in the sum of $300, only reflected a small proportion of the debt owed at the time, approximately $19,000, and, by itself, did not create an inference of assent.

Student note: 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. The agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account.

Case: Citibank v. Brown-Serulovic, NY Slip Op 05381 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Newly-discovered evidence.