GOLDEN STAR IMPORTS LTD v. ABRAMOV SONS INC (2021)

Order, Supreme Court, New York County (Carol Ruth Feinman, J.), entered November 14, 2019, which, after a nonjury trial, dismissed the complaint, unanimously affirmed, with costs.

Plaintiff was unable to relate with specificity which items sold were the source of the balance allegedly owed by defendants to plaintiff (see CPLR 3016[f];  Epstein, Levinsohn, Bodine, Hurwitz & Weinstein, LLP v. Shakedown Records, Ltd., 8 A.D.3d 34, 35, 777 N.Y.S.2d 633 [1st Dept. 2004] ).  The parties agreed at trial that plaintiff did not apply defendants' payments to specific items on the invoices, but rather, that plaintiff simply credited the payments toward the oldest invoice.  Moreover, plaintiff never presented any evidence showing how it arrived at a sum of $140,093.40 owed to it when the invoice stated that $243,328.05 was the actual amount due.

Plaintiff also failed to prove an account stated by a preponderance of the evidence.  Plaintiff's evidence failed to show any agreement by defendants to pay the sum of money plaintiff claimed was due on the account (see Federated Fire Protection Sys. Corp. v. 56 Leonard St., LLC, 170 A.D.3d 432, 433, 93 N.Y.S.3d 558 [1st Dept. 2019];  Morrison Cohen Singer & Weinstein, LLP v. Ackerman, 280 A.D.2d 355, 356, 720 N.Y.S.2d 486 [1st Dept. 2001] ).