Bay Ridge Lumber Co. v. Summit Renovation Corp.

—In an action to re 560 cover damages for breach of contract and for an account stated, the defendant appeals from a judgment of the Supreme Court, Kings County (Wade, J.), entered January 7, 1999, which, after a nonjury trial, is in favor of the plaintiff and against it in the principal sum of $48,053.04. Ordered that the judgment is affirmed, without costs or disbursements. In 1991 the defendant, a general contractor, ordered various materials from the plaintiff for use in its public and private construction projects around New York City. The agreed-upon price for the materials was $102,509, of which the defendant ultimately paid the plaintiff $42,758. Thereafter, the plaintiff commenced this action to recover the remaining $59,751, and the defendant interposed a counterclaim for damages in the amount of $467,400, alleging that the plaintiff delivered defective materials and delayed the delivery of other materials. The plaintiff established its entitlement to recover the principal sum of $48,053, through the invoices and signed receipts that it submitted at trial. Because the defendant did not object to the invoices it received within a reasonable period of time, its retention of them without objection gave rise to an enforceable account stated (see, e.g., Peterson v IBJ Schroder Bank & Trust Co., 172 AD2d 165, 166; Chemical Bank v Kaufman, 142 AD2d 526, 527; Marino v Watkins, 112 AD2d 511; Rosenman Colin Freund Lewis & Cohen v Neuman, 93 AD2d 745). Moreover, the trial court correctly found that the defendant failed to prove its counterclaim (see, e.g., Pronti v DML of Elmira, 103 AD2d 916). O’Brien, J. P., Sullivan, Friedmann and Feuerstein, JJ., concur.