Rosenberg Selsman Rosenzweig & Co. v. Slutsker

Order of the Appellate Term of the Supreme Court, First Department, entered on or about February 25, 1999, which affirmed an order of the Civil Court, New York County (Stephen Gottlieb, J.), entered on or about July 23, 1997, granting plaintiff’s motion for summary judgment, and awarding it the principal amount of $10,343.95, unanimously affirmed, without costs. Summary judgment was properly granted since defendant’s assertion, regarding statements made before the parties reduced their agreement to written contract, may not be used to vary the terms of the writing (Marine Midland Bank-S. v Thurlow, 53 NY2d 381, 387; Namad v Salomon Inc., 147 AD2d 385, 387, affd 74 NY2d 751). Without other evidence that defendant, an attorney, expressly disclaimed personal responsibility for plaintiff’s services, defendant was properly held liable under the written agreement of the parties for the invoice he received (Urban Ct. Reporting v Davis, 158 AD2d 401, 402). We also note that having received and retained the invoice without objection for a reasonable time, defendant’s silence gave rise to an actionable account stated warranting summary judgment for plaintiff (Rockefeller Group v Edwards & Hjorth, 164 AD2d 830). Concur — Rosenberger, J. P., Wallach, Saxe, Buckley and Friedman, JJ.