Hoffinger Stern & Ross, LLP v. Neuman

Judgment, Supreme Court, New York County (Louis B. York, J.), entered May 11, 2010, awarding plaintiff the total sum of $832,482.74 as against Philip Neuman, and bringing up for review an order, same court and Justice, entered May 6, 2010, which, inter alia, granted plaintiffs motion for summary judgment on its cause of action for an account stated as against Neuman and for summary judgment dismissing defendants’ affirmative defenses, unanimously reversed, on the law, without costs, the judgment vacated, plaintiffs motion denied, and defendants’ application for leave to replead their affirmative defenses granted. Summary judgment was improperly granted on plaintiffs account stated cause of action. Plaintiff alleges that defendants retained and did not object to a billing statement that was is 429 sued only one day before plaintiff brought a prior action on the claims asserted in this action. According to the instant complaint, that was the only statement defendants allegedly retained without objection. The prior action was dismissed on defendants’ cross motion for summary judgment. In making their cross motion, defendants challenged, among other things, the amount allegedly due for plaintiffs services. Given this history, there is, to say the least, a triable factual issue as to whether defendants held the statement without objection (see e.g. Cohen Tauber Spievak & Wagner, LLP v Alnwick, 33 AD3d 562, 562-563 [2006], lv dismissed 8 NY3d 840 [2007]). Plaintiff did not establish that it would be prejudiced by defendants’ repleading their affirmative defenses with specificity (see CPLR 3025 [b]; Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]). Concur — Sweeny, J.P., Catterson, Renwick and DeGrasse, JJ.