Appeal from an order of the District Court of Suffolk County, Fourth District (Gigi A. Spelman, J.), entered January 3, 2006. The order, insofar as appealed from, denied plaintiff's motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

Plaintiff instituted this action for breach of contract seeking the balance due for services rendered defendant and for an account stated. Plaintiff moved for summary judgment and defendant cross-moved pursuant to CPLR 3211 to dismiss the complaint and for summary judgment in its favor. The court denied both the motion and cross motion finding that there exist triable issues of fact which preclude the granting of the
relief requested. Plaintiff appeals from so much of the order as denied its motion for summary judgment.

We are in agreement with the lower court that there exist triable issues of fact as to whether a 60-day free trial period within which defendant could terminate the agreement was part of the contract between the parties and, if so, whether defendant did in fact terminate said agreement within the applicable time period. We note that defendant's failure to object to the fees charged by plaintiff would not create a liability under the theory of an account stated if it is established at trial that no liability existed in the first place (see Gurney, Becker & Boarne v Benderson Dev. Co., 47 NY2d 995, 996 [1979]). [*2]

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: October 27, 2006