Plaintiff's motion for summary judgment and Defendant's cross-motion for a default judgment on its counterclaim are decided as follows.

Plaintiff seeks to recover the sum of $8,016.04 for work, labor and services provided to Defendant pursuant to a service agreement. The agreement calls for Plaintiff to supply [*2]Defendant with linens and launder any soiled articles in exchange for cleaned articles on a weekly basis. Plaintiff asserts that Defendant refuses to pay for the services provided and failed to refute the invoices submitted for said service in a timely manner. In opposition, Defendant poignantly argues that Plaintiff repeatedly over-billed Defendant for the services provided and disputes whether a valid contract exists between the parties due to the multiple written versions of the agreement in its possession.

Plaintiff moves for summary judgment on its first and second causes of action for breach of contract and an account stated, respectively. Plaintiff further claims it is entitled to interest at the rate of eighteen percent (18%) on the monies owed and attorney's fees pursuant to the parties' agreement. Defendant cross-moves for an order denying Plaintiff's motion and granting a default judgment due to Plaintiff's failure to answer the counterclaim.

It is well-established that on a motion for summary judgment the test to be applied is whether triable issues of fact exist or whether on the proof submitted, judgment can be granted to a party as a matter of law (Andre v. Pomeroy, 35 NY.2d 361, 362 NYS2d 131 (1974)). It is incumbent upon the proponent of the motion to set forth a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hospital, 68 NY.2d 320, 508 NYS2d 923 (1986)). Upon making a prima facie case, the burden shifts to the opponent of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (Zuckerman v. City of New York, 49 NY.2d 557, 427 NYS2d 595 (1980)).

Initially, the cross-motion for a default judgment must be denied, even without the interposition of a reply, because the allegations set forth in a counterclaim are deemed denied pursuant to Uniform District Court Act § 907(a). The other issues raised by Defendant on the cross-motion include factual questions pertaining to the parties' agreement and disputed instances of overcharging which are not properly decided on a motion for summary judgment.

I.Breach of Contract - First Cause of Action

To succeed on its claim for breach of contract, Plaintiff must demonstrate the existence of an agreement between the parties, consideration, performance by the Plaintiff, a breach by the Defendant, and damages (See Alarm Monitoring Corp. v. D'Agostino Supermarkets, Inc., 21 Misc 3d 1148(A), 875 NYS2d 818 (Nassau Cty. Sup. Ct. Dec. 11, 2008) (citing Furia v. Furia, 116 AD2d 694, 498 NYS2d 12 (2d Dep't 1986)). In opposition to the motion, Defendant submitted the affidavit of Roberta Vergari, Vice President of Forlano Enterprises, Inc., which is sued as Defendant herein without objection, dated November 10, 2009, wherein Ms. Vergari questions Plaintiff's billing and the validity of the agreement claiming there are "at least three different versions of the contract in existence" (Vergari Affid., at ¶¶ 3-6). [*3]

Since Ms. Vergari has raised material issues of disputed fact concerning the parties' agreement and compliance thereunder, Plaintiff's motion for summary judgment on the first cause of action for breach of contract must be denied.

II.Account Stated - Second Cause of Action

Plaintiff's second cause of action is for an account stated. A claim for an account stated must demonstrate that (1) an account was presented, (2) the account was accepted as correct and (3) the debtor promised to pay the amount stated (Nanjing Textiles IMP/EXP Corp., Ltd. v. NCC Sportswear Corp., 2006 U.S. Dist. LEXIS 56111 (S.D.NY Aug. 11, 2006); Jim-Mar Corp. v. Aquatic Constr., 195 AD2d 868, 869, 600 NYS2d 790 (3d Dep't ), lv. denied, 82 NY2d 660, 605 NYS2d 6 (1993); Parker Chapin Flattau & Klimpl v. Daelen Corp., 59 AD2d 375, 399 NYS2d 222 (1st Dep't 1977)).

An account stated concerns a debt owed independent of the original obligation (Duane Reade v. Cardinal Health, Inc., 21 AD3d 269, 799 NYS2d 416 (1st Dep't 2005). The basis for recovery is that the parties, through their conduct, demonstrated an agreement as to the balance of indebtedness (See Interman Industrial Products, Ltd. v. R.S.M. Electron Power, Inc., 37 NY2d 151, 153-54, 371 NYS2d 675 (1975)). As such, a party who receives an account for services rendered but fails to timely object to the account, or tenders partial payment on it, will be bound on the account, unless fraud, mistake or other equitable corrections are shown to impeach what is otherwise presumed a conclusive settlement (Morrison Cohen Singer and Weinstein, LLP v. Waters, 13 AD3d 51, 786 NYS2d 155 (1st Dep't 2004)).

A party satisfies its initial burden of entitlement to judgment as a matter of law on an account stated where it shows that invoices were sent to Defendant utilizing a regular office mailing procedure (Morrison Cohen Singer and Weinstein, LLP v. Brophy, 19 AD3d 161, 798 NYS2d 379 (1st Dep't 2005) and "by establishing, with admissible evidence, the receipt and retention of bills without objection within a reasonable time" (LD Exchange, Inc. v. Orion Telecoms. Corp., 302 AD2d 565, 755 NYS2d 630 (2d Dep't 2003), or partial payment of the bills (Waters, supra , 13 AD3d at 52). "Acceptance as correct and a promise to pay the amount stated is implied where a defendant receives and retains invoices without objection in a reasonable period of time" (Leepson v. Allan Riley Co., Inc., 2006 U.S. Dist. LEXIS 52875, at *11-12 (S.D.NY July 31, 2006)). "Where, however, plaintiff fails to prove that such invoices were properly addressed and mailed, and there is no evidence of a regular office mailing, there should be no presumption of receipt[]" (Melito & Anderson, P.C. v. Travelers Indem. Co., 21 Misc 3d 1102(A), 872 NYS2d 692 (NY Sup. Ct. July 24, 2008)).

Once Plaintiff makes a prima facie showing of entitlement of judgment as a matter of law, the burden then shifts to the Defendant to prove fraud, mistake or that it never accepted the account stated (See Romeo v. Bimco Industries, Inc., 57 AD2d 947, 395 NYS2d 93 (2d Dep't 1977)). As in any case for summary judgment, unsubstantiated, conclusory allegations will be insufficient to defeat the motion (Cohen Tauber Spievak & Wagner, LLP v. Alnwick, 33 AD3d [*4]562, 825 NYS2d 439 (1st Dep't 2006) (internal citations omitted)).

A.Demand for Payment

In support of the claim, Plaintiff submitted the affidavit of its President George Sundel, dated October 19, 2009, who testified that "[a]t no time did the Defendant . . . dispute[] the balance due until after defaulting in payment and numerous demands" (See Sundel Affid., at ¶ 6). Omitted from Mr. Sundel's affidavit as well as his reply affidavit, dated December 4, 2009, is any proof, statement or indication that Plaintiff mailed the invoices to Defendant, by whom the demand for payment was made, or the dates and manner in which the demands were made. Nor is there any indication that the invoices were provided pursuant to a regular office mailing procedure. Instead, Plaintiff relies upon a general assertion that no dispute was made despite "numerous demands" (Sundel Affid., at ¶ 6). In its opposition, Defendant failed to address the account stated claim either directly or indirectly.

Accordingly, the Court construes Defendant's failure to refute receipt of the invoices as its acquiescence that such demand was in fact made and received. Further there is no basis from which it can be concluded that Defendant objected to the invoices.

B.The Amount Sought

Although the Court would otherwise be inclined to grant summary judgment due to Defendant's failure to timely object to the invoices, summary judgment is not proper here because the proof submitted in support of the account does not clearly indicate the amount actually owed, and, as such, there can be no agreed upon balance of indebtedness (See Portfolio Recovery Assocs., LLC v. Greer, 2009 NY Slip Op 52506U, 2009 NY Misc. LEXIS 3357 [App. Term Second Dep't May 2009]). A review of the invoices for goods/services provided during the applicable period — September 18, 2008 through November 13, 2008 — equals $8,959.72 (Complaint at ¶ 4; Exhibit "E" to Plaintiff's Motion). However, Plaintiff is claiming an account stated for a lesser amount — $8,016.04 (See Sundel Affid., at ¶ 7).

Plaintiff introduced nine (9) invoices from the relevant period (Exhibit "E" to Plaintiff's motion). Although the invoices were submitted without any explanation whatsoever, the Court notes that the amounts claimed due is different on each invoice. Moreover, each invoice includes two (2) totals — the current invoice amount and the balance owed on the account. Toward this end, it is apparent that Defendant had a pre-existing balance of $8,396.54 prior to September 18, 2008, the beginning of the relevant period (Complaint, at ¶ 4; Exhibit "E" at p. 1 to Plaintiff's Motion). It is further apparent that Defendant tendered unidentified partial payments during the relevant period as evidenced by the fluctuation in the total balance listed on each invoice.

While one may surmise the Plaintiff computed the amount claimed — $8,016.04 — by decreasing a $1,500 payment (as supported by a handwritten notation on the final invoice dated December 13, 2008; Exhibit "E") from the total balance due at that time, the Court cannot with [*5]any reasonable certainty conclude that this figure represents the balance actually due for goods/services during the applicable period set forth in the Complaint particularly since Defendant had a pre-existing balance of $8,396.54. The Court further notes that the handwritten notation appearing on the otherwise computer-generated invoice is neither initialed nor dated (Id.).

Plaintiff failed to reconcile the differing balances on the invoices or demonstrate why it did not simply add the "current totals" on each invoice during the relevant period and deduct any payments received. Similarly, it cannot be concluded that there was an agreed upon balance since the balances changed from invoice to invoice and the amount sought does not equal the total of the itemized entries on each invoice. Moreover, Defendant has claimed fraudulent over-billing practices on the part of Plaintiff and disputes the validity of the claim under the purported contract.

The Court thus finds that triable issues of fact exist as Plaintiff has not demonstrated that Defendant agreed, expressly or implicitly, to pay the amount claimed as required for an account stated (See Portfolio Recovery Assocs., LLC, supra , 2009 NY Slip Op 52506U, 2009 NY Misc. LEXIS 3357 (affirming denial of summary judgment on account stated claim where the amount sought did not equal the amount indicated on the monthly statement notwithstanding defendant's failure to timely object) (citing Interman Industrial Products, Ltd., supra , 37 NY2d at 151, 371 NYS2d at 675)). This is not to suggest that Defendant is deemed to have paid its debt in full. The amount owed Plaintiff, if any, will necessitate a trial on the merits.

Accordingly, the motion for summary judgment on the cause of action for an account stated is denied.

III.The Claim for Interest and Attorney's Fees — Third and Fourth Causes of Action

Plaintiff's third and fourth causes of action for 18% interest and attorney's fees arise from the breach of contract claim (first cause of action) and, as such, based on the foregoing, summary judgment is not proper on either of these causes of action (See Providian National Bank v. Montalbano, N.Y.L.J. Jan. 2, 2001, at p. 30 [App. Term 9th & 10th Jud. Dists. 2001]; Providian National Bank v. Friedman, N.Y.L.J. Oct. 30, 2001, at p. 20 [App. Term 9th & 10th Jud. Dists. 2001]).

Based on the foregoing, Plaintiff's motion and Defendant's cross-motion are denied.

This constitutes the Decision and Order of the Court.

Dated:February 19, 2010 [*6]

________s/_________________________STEPHEN L. UKEILEY, J.D.C.