This is an action for breach of contract and lien foreclosure, arising from an apartment-renovation project performed by plaintiff, New York Interior Group, for defendants, Peter Bonney and Kathleen Holliday Jordan. Plaintiff completed the contracted-for renovation work and sent defendants a final invoice, which has not been paid. Defendants requested an itemized statement for the renovation work, to explain costs that exceeded the original estimate. (NYSCEF No. 15.) Defendants allege that the itemized statement provided is deficient. (NYSCEF No. 5 at 9.) Plaintiff filed a mechanic's lien on the property for $89,401.46, which exceeds the amount of plaintiff's final invoice by $15,000. (NYSCEF No. 5 at 8.)

Plaintiff brought this action for breach of contract, an account stated, and lien foreclosure. Defendants now move to dismiss the account-stated and lien-foreclosure claims, and to vacate plaintiff's lien. The motion to dismiss is denied. The request for vacatur is denied. [*2]Plaintiff is ordered to provide defendants with a more detailed itemized statement under Lien Law § 38.

I. The Branch of Defendants' Motion Seeking Dismissal of Plaintiff's Account-Stated Claim

Defendants argue first that the account-stated claim should be dismissed as duplicative of the breach-of-contract claim. (NYSCEF No. 5 at 4.) But the Appellate Division, First Department, recently made clear that account-stated claims are independent and distinct from breach-of-contract claims and should not be dismissed as duplicative. (See Aronson Mayefsky & Sloan, LLP v Praeger, 2024 NY Slip Op 02657 at *1 [1st Dept 2024].^[FN1] ) Aronson does preserve a "very narrow exception" to this rule in circumstances when a plaintiff "is attempting to use a claim for an account stated 'simply as another means to attempt to collect under a disputed contract.'" (Id., quoting Martin H. Bauman Assoc., Inc. v H & M Intl., 171 AD2d 479, 485 [1st Dept 1991].) But that exception is inapplicable here because the parties do not dispute the validity of the contract.

Defendants contend that the account-stated claim fails to state a cause of action. This court disagrees. A plaintiff asserting an account-stated claim must allege that it provided bills or invoices to defendants and that defendants received and retained the invoices absent objection made within a reasonable time. (See e.g. Bartning v Bartning, 16 AD3d 249, 250 [1st Dept 2005].) The parties acknowledge that plaintiff provided invoices to defendants and that defendants received them. Plaintiff also alleges that defendants did not object to the final invoice. (See NYSCEF No. 1 ¶ 11). These allegations state a cause of action.

Defendants additionally seek to dismiss the account-stated claim under CPLR 3211 (a) (1), on the ground that documentary evidence establishes they did object to the invoices. (NYSCEF No. 5 at 4.) To qualify as "documentary evidence" for these purposes, the documents relied upon must be unambiguous, of undisputed authenticity, essentially undeniable. (See VXI Lux Holdco, 171 AD3d at 193.) And that documentary evidence must "definitively contradict[]" plaintiff's factual allegations, or "conclusively establish[]" a defense. (Id. at 193.)

Here, defendants rely on emails, an affidavit from defendant Bonney, and demands that they served for an itemized statement of costs. (NYSCEF Nos. 10-12, 15-16.) Emails and affidavits can, in appropriate circumstances, qualify as documentary evidence. (See Kolchins v Evolution Mkts., Inc., 128 AD3d 47, 58 [1st Dept 2015].) But these documents do not conclusively refute plaintiff's claims. The emails of November 25, 2023, and February 18, 2024, simply requested final payment details. (NYSCEF No. 11.) The email of November 26th, 2023, only corrected a computational error. (NYSCEF No. 12.) The demands for itemized statements [*3]made on January 30, 2024, did not themselves object to the amount billed in the final invoice.^[FN2] (NYSCEF No. 15.) "Concerns about the 'budget' is not the same as objecting to an invoice." (Beasley Chin & Hunderman P.C. v 115-87 Owners Corp., 2024 Slip Op 31015(U), *5 [Sup Ct, NY County 2024].)

The branch of defendant's motion seeking to dismiss the account stated claim is denied.

II. The Branch of Defendants' Motion Seeking Vacatur of Plaintiff's Lien

A. Whether the Lien Should be Vacated as Willfully Exaggerated

Defendants move under CPLR 3211 (a) (1) to dismiss plaintiff's lien-foreclosure claim, and to vacate the lien, arguing that plaintiff willfully exaggerated the lien amount. (NYSCEF No. 5 at 7.) To establish willful exaggeration, the burden is on the moving party to show that the lien amount was inaccurate, and that the inaccuracy was willful. (See Goodman v Del-Sa-Co Foods, Inc., 15 NY2d 191, 194 [1965].) Evidence presented by a party suggesting willful exaggeration must be "strictly construed in favor of the person upon whom the penalty is sought to be imposed." (Id. at 195.) And whether a lien amount is exaggerated generally a question of fact. (See Application of Upstate Builders Supply Corp., 37 AD2d 901, 901 [4th Dept 1971].)

In the present case, defendants contend that they raised with plaintiff that a $15,000 discrepancy existed between the unpaid amount listed in the final invoice ($74,401.34) and the larger unpaid amount listed in the notice of lien ($89,401.46). (See NYSCEF No. 8.) On this record, however, defendants have not shown that this discrepancy reflects willful exaggeration by plaintiff. Defendants do not, for example, provide evidence that plaintiff stated an intent to inflate the amount of the lien (compare Inter Metal Fabricators, Inc. v HRH Constr. LLC, 94 AD3d 529, 529 [1st Dept 2012]); or that the amount of the lien exceeded express contractual limits on plaintiff's compensation (compare Casella Constr. Corp. v 322 E. 93rd St. LLC, 211 AD3d 458, 458 [1st Dept 2022]).

At most, defendants have shown that they found and communicated to plaintiff a discrepancy between the final invoice and the lien amount. But inaccuracy in a lien amount is not enough, without more, to show willful exaggeration. (See Goodman, 15 NY2d at 194.) And defendants have not shown the asserted inaccuracy here resulted from a willful or intentional act of plaintiff.^[FN3]

Defendants' motion to dismiss the lien-foreclosure claim and to void the lien is denied.

B. Whether the Lien Should be Vacated for Lack of a Properly Itemized Statement

Defendants also argue that the lien should be vacated due to plaintiff's failure to provide a sufficient itemized statement under Lien Law § 38. (NYSCEF No. 5 at 9.) To vacate a lien under Lien Law § 38, a movant must first request an itemized statement from the opposing party. A movant that does not receive a statement, or believes that the statement it has received is deficient, may seek a court order compelling production of a satisfactory itemized statement. If the court requires production of an itemized statement because that the initial statement was deficient (or never provided), and the new statement is still deficient, the court may exercise its discretion to vacate the lien. (See Matter of Plain Ave. Stor., LLC v BRT Mgt., LLC, 165 AD3d 1264, 1266 [2d Dept 2018].)

To be sufficient, the itemization must be detailed enough to enable the movant to evaluate any disputed amount (See 819 Sixth Ave. Corp. v T. & A. Assocs., 24 AD2d 446, 446 [1st Dept 1965].) This should include "the description, quantity and cost of various kinds of materials and the details as to the nature of labor, time spent and hourly rate or other rate of the labor charges" in order to satisfy the requirements of Lien Law § 38. (Id.) The itemized statement plaintiff provided (see NYSCEF No. 8) does not satisfy these requirements: It fails to present either specifics about the materials used or many details regarding labor, beyond total lump sums paid. (See DePalo v McNamara, 139 AD2d 646, 646 [2d Dept 1988]; Matter of Maxwell Partners, LLC v L.G.B. Dev., Inc., 2006 WL 8085000 at *3 [Sup Ct, NY County July 10, 2006] [Feinman, J.].)

At the same time, this court declines at this time to vacate the lien, as defendants request. Defendants have not previously asked the court to compel a more detailed itemized statement—a precondition to vacatur. (See Strongback, 25 AD3d at 393.) The court instead directs plaintiff to provide defendants with a sufficiently itemized lien statement.

Accordingly, it is

ORDERED that the branch of defendants' motion seeking dismissal of plaintiff's account-stated and lien-foreclosure claims is denied; and it is further

ORDERED that the branch of defendants' motion seeking vacatur of plaintiffs' lien is granted only to the extent that plaintiff is ordered to provide defendants with a properly itemized Lien Law § 38 statement within 30 days of entry of this order, and otherwise denied; and it is

ORDERED that the parties are directed to appear before this court for a telephonic preliminary conference on August 2, 2024.