BAY RIDGE LUMBER CO INC v. SUMMIT RENOVATION CORP (2000)

In an action to recover 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 $59,750, 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 A.D.2d 165, 166, 567 N.Y.S.2d 704;  Chemical Bank v. Kaufman, 142 A.D.2d 526, 527, 530 N.Y.S.2d 582;  Marino v. Watkins, 112 A.D.2d 511, 490 N.Y.S.2d 917;  Rosenman Colin Freund Lewis & Cohen v. Neuman, 93 A.D.2d 745, 461 N.Y.S.2d 297).   Moreover, the trial court correctly found that the defendant failed to prove its counterclaim (see, e.g., Pronti v. DML of Elmira, Inc., 103 A.D.2d 916, 478 N.Y.S.2d 156).

MEMORANDUM BY THE COURT.