The following papers numbered 1-3 were read and considered in connection with Plaintiff’s Notice of Motion (Motion #1) for an Order striking Defendant’s answer and directing that summary judgment be entered in favor of the Plaintiff and against the Defendant for the relief demanded in the Complaint, upon the grounds that there is no defense to this action and for such other and further relief as to the court may seem just and proper: PAPERS NUMBERED Notice of Motion (Motion #1)/Affirmation of Eric J. Canals, Esq./Affidavit of Val Osipov/Exhibits A-E 1 Affirmation of Michael D. Pinsky, Esq./Exhibits 1-2 2 Affirmation of Eric J. Canals, Esq. in Reply 3 DECISION & ORDER The instant action is an account stated action to recover unpaid monies owed by Defendant to Plaintiff based upon the Plaintiff shipping goods from Defendant. Plaintiff commenced the instant action by filing a Summons and Complaint on March 17, 2023. Defendant was served through the Secretary of the State on March 27, 2023. Defendant joined issue by filing an Answer on April 24, 2023. In support of their application Plaintiff states they have demonstrated an agreement between the parties and that money is due and owing based upon the agreement. Plaintiff states that Defendant received the statements and Plaintiff did not receive any written complaint from the Defendant receipt of those statements. According to Plaintiff the Defendant’s Affirmative Defenses are baseless and are tantamount to a general denial. Plaintiff asserts they have met their prima facie burden and that Defendant cannot raise a material triable issue of fact. In opposition Defendant states that the Plaintiff is seeking a judgment which is seven (7) times the amount of the Plaintiff’s invoices sent to the Defendant. According to the Defendant the amount owed on the unpaid XPO invoices was $91,305.61 and the late payment amount alleged is $627,688.83. The Defendant states there is a question of fact as to how the late charges are calculated citing section 207 in Defendant’s Terms and Conditions, Further, Defendant contends the late payment is a form of liquidated damages because it is “grossly disproportionate” to the actual invoice amount of $91,305.61 and is void against public policy. The Defendant also argues that the Plaintiff has failed to proffer any evidence establishing that the late payment charge is reasonably proportioned to Plaintiff’s actual loss. According to Defendant there is a material issue of fact regarding the proportionality of the liquidated damages to Plaintiff’s calculated actual loss. Further, the president of Defendant contends they made their last payment before receiving statements with the late payment charge. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case and to warrant a court to direct judgment in its favor, as a matter of law. See Civil Practice Law and Rules §3212(b); See also Giuffrida v. Citibank Corp., et al, 100 NY2d 72 (2003), citing Alvarez v. Prospect Hosp., 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985). Account stated is an agreement between parties based upon their proper transactions with respect to the correctness of the account items and the specific balance due.” Citibank, NA v. Abraham, 138 AD3d 1053, 1056 (2d Dept 2016). “The agreement may be express or…implied from the retention of an account rendered for an unreasonable period of time without objection and from the surrounding circumstances.” Landau v. Weissman, 78 AD3d 661, 662 (2d Dept 2010) quoting Jim-Mar Corp. v. Aquatic Constr., 195 AD2d 868, 869 (3d Dept 1993). “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.” Yannelli, Zevin & Civardi v. Sakol, 298 AD2d 579, 580 (2d Dept 2002); See Arrow Employment Agency, Inc. v. David Rosen Bakery Supplies, 2AD3d 762 (2d Dept 2003). The Plaintiff demonstrated entitlement to summary judgment on its claim for account stated. Plaintiff provided evidence that the Defendant received Plaintiff’s invoices from April 19, 2021, through September 3, 2021, without objection and made partial payments thereon. In opposition Defendant’s raised a question of fact regarding the inequitable addition of late fees that are seven (7) times the amount owed. Defendant through the affidavit of their representative demonstrated that he engaged in discussions with Plaintiff regarding a bill that contained a balance of approximately $94,000 and based upon those discussions made a partial payment and in return received an updated invoice indicating an amount owed seven (7) times higher than the original debt. Based upon the assertions within Plaintiff’s representative’s Affidavit the Defendant has raised a question of fact as to the timing of the enforcement of the portion of the agreement/contract delineating the manner in which late fees were calculated, when the Defendant became aware of those fees relative to the last recorded partial payment, when Defendant objected to the newly inflated amount due. The large disparity between the amount owed on the original invoices and the final amount upon which the Plaintiff is seeking summary judgment in connection with Defendant’s consultation with a representative of Plaintiff as to the amount owed and the agreement of Plaintiff to make a partial payment on the lower amount negates any inference of assent on the later invoices which are seven (7) times higher than the original invoices. See Herrick, Feinstein LLP v. Stamm, 297 AD2d 477 (1st Dept 2022) As such, the Court is constrained to deny Plaintiff’s motion for summary judgment. Accordingly, it is here ORDERED that the Plaintiff’s Notice of Motion (Motion #1) for Summary Judgment is denied in its entirety; and it is further ORDERED that the parties appear for a virtual status conference on March 14, 2024 at 10:00am, TEAMS link to follow. The foregoing constitutes the Decision and Order of the Court on Motion #1. Dated: January 30, 2024
