[*2]I. Statement Pursuant to CPLR § 2219 [a]

The following e-filed documents listed on NYSCEF (Motion No. 005) numbered 53-77 were read on this motion. Upon the foregoing papers and oral argument completed on January 15, 2026, Plaintiff's motion pursuant to CPLR § 3212 for summary judgment, seeking judgment on the causes of action sounding in breach of contract and account stated, dismissal with prejudice of Defendants' affirmative defenses and counterclaims, and an award of interest and attorneys' fees, this Court has considered: the Notice of Motion and supporting submissions (including the affirmation of Remy Butts with exhibits, the affirmation of Richard Weichman II with exhibits, and Plaintiff's memorandum of law), as well as Defendants' opposing submissions (including the affirmation of Dominick Detore and the affirmation of Joseph M. Laura), and Plaintiff's reply submissions.

Plaintiff United Rentals (North America), Inc. ("Plaintiff" or "United Rentals") is engaged in the leasing of construction equipment and materials, maintaining customer credit accounts in the ordinary course of its business. (NY St Cts Filing [NYSCEF] Doc No. 54). Mr. Butts, Plaintiff's Credit Associate, attests that customers routinely lease equipment on credit, and that, prior to extending credit, United Rentals requires submission of a credit application and related information to confirm creditworthiness. (see id at ¶6).

Mr. Butts further attests that United Rentals requires principal owners of the customer to personally guarantee the obligations incurred by the entity leasing equipment on credit. (see id at ¶7).

On or about March 17, 2017, Defendant Dominick Detore completed and submitted a credit application to United Rentals requesting an open credit account for Defendant 2 D Construction Corp. (also referenced in the submissions as "2 DConstruction"). (NY St Cts Filing [NYSCEF] Doc No. 55). Plaintiff avers it extended credit to Defendants pursuant to a written credit agreement, identified by Mr. Butts as executed and annexed as Exhibit A to his affirmation. (see id).

As described in Mr. Butts' sworn submission, the credit agreement contains a "continuing personal guarantee," by which Mr. Detore agreed to be personally liable for sums owed to United Rentals in the event of default or nonpayment by 2 D Construction Corp. (NY St Cts Filing [NYSCEF] Doc No. 54 at ¶19).

Mr. Butts describes United Rentals' account practices in detail. He attests that customer credit accounts are routinely maintained and updated to reflect additional charges (including interest and late fees, where applicable) and credits for customer payments. (see id at ¶13). Mr. Butts further attests that it is United Rentals' regular practice to send customers periodic invoices and monthly statements detailing the balance owed. (see id at ¶14).

In addition, United Rentals' credit department maintains a system that keeps a chronological record of each customer's account and permits employees to enter and review notes and comments regarding the account, documenting calls, interactions, and communications with customers. (see id at ¶15). Mr. Butts attests that, in connection with this motion, he reviewed all records regarding Defendants' account activity and historical communications. (see id at ¶16).

Mr. Butts identifies a "customer credit report" (also described as the "Customer Report"), which documents comments made by United Rentals employees regarding the account and describes communications and interactions between the customer and the credit department, annexed as Exhibit C to his affirmation. (see id at ¶26; NY St Cts Filing [NYSCEF] Doc No. 57).

Mr. Butts attests that Defendants subsequently leased equipment from United Rentals for a project at the Pennsauken Terminal in Pennsauken, New Jersey, commencing on or about June 26, 2020, and ceasing on or about July 28, 2021. (NY St Cts Filing [NYSCEF] Doc No. 54 at ¶20).

During the project period, Defendants accrued rental charges for leasing the equipment and made periodic payments toward the account balance. (see id at ¶21). Mr. Butts attests that Defendants eventually ceased all payments and that a balance of $1,588,013.40 remained due as of March 31, 2023, inclusive of interest and late fees, as shown in the account statement annexed as Exhibit B. (see id at ¶22; NY St Cts Filing [NYSCEF] Doc No. 55). Mr. Butts further attests that, although Plaintiff sent periodic invoices and monthly statements, Defendants did not make payments as required and that Defendants' failure to pay constitutes a breach of the credit agreement. (NY St Cts Filing [NYSCEF] Doc No. 54 at ¶24).

Mr. Butts attests that, to the best of his knowledge, Defendants have never objected, verbally or in writing, to either the performance of the equipment or the amount of the account balance, and that Defendants are liable under an account stated theory. (see id at ¶25).

Mr. Butts further attests that the Customer Report documents numerous interactions and conversations between United Rentals' credit personnel and Mr. Detore regarding the open balance, including calls discussing the balance and discussions regarding payments or demands for payment. (see id at ¶28). Critically, Mr. Butts attests that there is "no reference or record" in the Customer Report of any claim by Mr. Detore or on behalf of Defendants regarding overbilling, damaged or malfunctioning equipment, or any request for a credit to the account; and he further attests that, if such a claim had been made or communication occurred, he believes it would be referenced and set forth in detail in the Customer Report. (see id at ¶29).

In opposition, Defendant Dominick Detore asserts that a "large generator" supplied by Plaintiff experienced "serious operational problems," including "power instability," and that Defendants contacted United Rentals for service and/or replacement; he asserts technicians were dispatched on multiple occasions and spent substantial time attempting repairs. (NY St Cts Filing [NYSCEF] Doc No. 72 at ¶6-7). Mr. Detore further asserts that, due to the generator malfunction and an "ongoing service dispute," Defendants "did not accept as correct" charges allegedly billed for generator rental time while the generator was not functioning properly, and he asserts that such issues were communicated during service calls and related communications. (see id at ¶9-

Non-party Joseph M. Laura similarly asserts that he observed the generator not operating correctly and experiencing power fluctuations; he further asserts communications were made to [*3]Plaintiff and that Plaintiff sent technicians to the site. (NY St Cts Filing [NYSCEF] Doc No. 73 at ¶4; ¶6).

Defendants' opposition further contends that Plaintiff's submissions include business records lacking a proper foundation and are thus inadmissible hearsay, relying on authority addressing the foundational requirements for the business-records exception.

In reply, Plaintiff contends that Defendants cannot support their assertions with documentary proof of any complaint to Plaintiff regarding the generator, and Plaintiff cites the absence of any email, text message, or other writing regarding complaints about the generator. Plaintiff further contends Defendants produced no documentation or evidence as to when, where, or by whom objections were made to invoices or statements, and relies upon case authorities that, in the absence of timely objections, an account stated is established.

Plaintiff also relies upon deposition testimony that (i) Mr. Detore did not review invoices and did not know whether they were reviewed by Mr. Laura or anyone else, (NY St Cts Filing [NYSCEF] Doc No. 68 at page 44 lines 4-8) (ii) Mr. Laura would not commit to stating he reviewed invoices (NY St Cts Filing [NYSCEF] Doc No. 69 at page 54 lines 18-22), and (iii) Mr. Detore testified he did not complain or object to invoices because invoice review was Mr. Laura's responsibility. (NY St Cts Filing [NYSCEF] Doc No. 68 at page 42 lines 4-24; page 45 lines 4-24).

Plaintiff further relies upon deposition testimony reflecting that, when asked how much Plaintiff was owed from Defendants for the project, Mr. Detore responded that the amount was "in the neighborhood of a million eight." (see id at page 36 lines 3-6). Plaintiff cites additional testimony that Mr. Detore stated that if he had access to the funds he would have "absolutely" paid Plaintiff. (see id at page 53 lines 8-10).

Summary judgment is a "valuable, practical tool" for resolving cases involving only questions of law, permitting a party to demonstrate by affidavit or other evidence that there is no material issue of fact to be tried and that judgment may be directed as a matter of law (see Brill v City of New York, 2 NY3d 648 [2004]). Where no genuine issues of material fact exist, summary judgment must be granted (see 10 Bethpage Rd., LLC v 114 Woodbury Realty, LLC, 178 AD3d 751 [2d Dept]; Friedman v Pesach, 160 AD2d 460, 460 [1st Dept 1990]).

The moving party bears the initial burden of tendering evidentiary proof in admissible form establishing entitlement to judgment as a matter of law (see Alvarez v Prospect Hospital, 68 NY2d 320 [1986]; Winegrad v New York University Medical Center, 64 NY2d 851 [1985]). Once that burden is satisfied, the burden shifts to the opposing party to raise a triable issue of fact warranting denial (see CPLR § 3212 [b]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Conclusory assertions are insufficient; the opponent must submit evidence in admissible form, and "mere [*4]conclusions, expressions of hope or unsubstantiated allegations or assertions" do not suffice (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

A breach of contract cause of action requires proof of (1) a contract, (2) performance by one party, (3) breach by the other, and (4) damages (see Franklin D. Nastasi Trust v Bloomberg, L.P., 224 AD3d 804 [2d Dept 2024]; Magee-Boyle v Reliastar Life Ins. Co. of NY, 173 AD3d 1157 [2d Dept 2019]; Canzona v Atanasio, 118 AD3d 837 [2d Dept 2014]; Dee v Rakower, 112 AD3d 204 [2d Dept 2013]).

An account stated is an agreement between parties to an account, based upon prior transactions, as to the correctness of the account items and the balance due (see Alliance Natl. Ins. Co. v Hagler, 219 AD3d 1393 [2d Dept 2023]; Bashian & Farber, LLP v Syms, 147 AD3d 714 [2d Dept 2017]; Cach, LLC v Aspir, 137 AD3d 1065 [2d Dept 2016]; Interman Indus. Prods. v R.S.M. Electron Power, 37 NY2d 151 [1975]). The agreement may be implied where the defendant retains invoices or account statements for an unreasonable period without objection (see Bank of Am., N.A. v Ball, 188 AD3d 974 [2d Dept 2020]; Finger & Finger, A Professional Corp. v Buckingham Owners, Inc., 165 AD3d 887 [2d Dept 2018]; Jim-Mar Corp. v. Aquatic Constr., 195 AD2d 868 [3d Dept 1993]).

A plaintiff establishes a prima facie account-stated case by competent evidence that invoices were transmitted, the defendant retained them without objection, and/or partial payment was remitted for application to the account (see Alliance Natl. Ins. Co. v Hagler, 219 AD3d 1393 [2d Dept 2023]; Bank of Am., N.A. v Ball, 188 AD3d 974 [2d Dept 2020]).

Defendants contend Plaintiff's proffered documents are inadmissible hearsay absent proper foundation and cite authority describing the predicate for the business-records exception, including that the record must be made in the regular course of business, it must be the regular course of business to make the record, and it must be made at or about the time of the event recorded.

Defendants' evidentiary objections require the Court to assess whether Plaintiff tendered proof in admissible form sufficient to make a prima facie showing. Plaintiff relies principally on the sworn affirmation of Mr. Butts, who attests he is the Credit Associate responsible for overseeing and managing customer credit accounts and is "intimately familiar" with the manner and method by which United Rentals creates and maintains its books and records, including computer records of credit accounts.

Mr. Butts further attests his knowledge is based upon his review of customer information, records, documents, and reports created or maintained by United Rentals in the normal and ordinary [*5]course of business, and that each document or record was created at or near the time of the occurrences recorded by an employee of United Rentals or an otherwise qualified person with knowledge. He also attests that each document attached is a true and accurate copy maintained by Plaintiff.

On these submissions, Plaintiff has supplied sworn business-practice testimony addressing the very features Defendants identify as essential to business-record foundation. Accordingly, Defendants' generalized foundational challenge does not, on this motion, negate Plaintiff's prima facie evidentiary showing.

Plaintiff's sworn proof establishes the existence of a written credit agreement governing the account and identifying a continuing personal guarantee executed by Defendant Detore. Plaintiff's submissions further establish equipment was leased for the Pennsauken Terminal project during the stated period, that charges accrued, that payments were made for a time, and that payments ceased, leaving a stated balance of $1,588,013.40 as of March 31, 2023, inclusive of interest and late fees, supported by the account statement annexed as Exhibit B.

The sworn submission further establishes breach and damages: Defendants did not make payments as required by the credit agreement, and such failure constitutes a breach.

These showings satisfy the prima facie elements for breach of contract described by Plaintiff's cited authorities.

Defendants attempt to defeat summary judgment by advancing a narrative of generator malfunction, service visits, and an asserted "service dispute," contending they did not accept as correct certain charges billed during periods of alleged malfunction.

The difficulty with this opposition, on the present posture, is not that equipment-performance disputes are legally incapable of affecting payment obligations; rather, it is that Defendants' showing is presented at a level of generality that fails to generate a genuine dispute of material fact as to the indebtedness established by Plaintiff's prima facie proof. Plaintiff's evidentiary showing is anchored in a written credit agreement, a continuing personal guarantee, documented billing practices, account statements, and a Customer Report that, according to sworn testimony, would ordinarily reflect billing objections, claims of malfunction, or requests for credit, yet contains no such entries.

Defendants do not supply documentary proof, such as written invoice objections, written claims for credit, or other contemporaneous written communications to Plaintiff, demonstrating that invoice disputes were actually asserted with sufficient specificity to place the account in dispute. Plaintiff, conversely, argues that Defendants produced "not one single document, email, or text message" regarding complaints about the generator.

Furthermore, Plaintiff relies upon deposition testimony suggesting that invoices were not reviewed by Mr. Detore, that Mr. Laura did not commit to having reviewed invoices, and that Mr. Detore did not object to invoices because invoice review was allegedly delegated. Such testimony does not constitute proof of a timely objection; it is, rather, proof that objections were not made by [*6]the party now asserting them, and it underscores the absence of a concrete, contemporaneous billing dispute.

Finally, Plaintiff points to Mr. Detore's deposition estimate that the amount owed was "in the neighborhood of a million eight," a statement consonant with the magnitude of the balance set forth in Plaintiff's sworn account statement.

Under the governing summary judgment standard, the opponent must do more than offer generalized assertions; it must submit evidence in admissible form raising a genuine material issue (see CPLR § 3212 [b]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Here, Defendants have not proffered evidentiary material, documentary or otherwise, sufficiently particularized to raise a triable dispute over the indebtedness Plaintiff establishes through its prima facie submissions.

Accordingly, Plaintiff is entitled to summary judgment on breach of contract.

Plaintiff has also established entitlement to summary judgment on the account stated cause of action.

Plaintiff submits sworn proof that it is United Rentals' regular practice to send periodic invoices and monthly statements detailing the balance owed. Plaintiff further submits sworn proof that it maintains a chronological Customer Report documenting account communications, calls, and interactions regarding the account.

Most significantly, Mr. Butts attests that the Customer Report documents multiple interactions and conversations with Mr. Detore regarding the open balance and demands for payment; yet, it contains no reference or record of any claim of overbilling, damaged or malfunctioning equipment, or request for credit.

Such proof aligns with the account-stated principle that assent may be implied where invoices are retained without objection for an unreasonable period (see Bank of Am., N.A. v Ball, 188 AD3d 974 [2d Dept 2020]; Finger & Finger, A Professional Corp. v Buckingham Owners, Inc., 165 AD3d 887 [2d Dept 2018]; Jim-Mar Corp. v. Aquatic Constr., 195 AD2d 868 [3d Dept 1993]). Plaintiff's submissions also conform to the prima facie showing described by the authorities cited in the papers, including that the plaintiff transmitted invoices and the defendant retained them without objection and/or made partial payments toward the account (see Alliance Natl. Ins. Co. v Hagler, 219 AD3d 1393 [2d Dept 2023]; Bank of Am., N.A. v Ball, 188 AD3d 974 [2d Dept 2020]).

Defendants' opposition, asserting oral communications during service visits, does not constitute competent evidence of timely invoice objection sufficient to defeat account stated on the present showing, particularly where Plaintiff's sworn account-system testimony indicates such objections would be documented, and none are. Plaintiff further relies upon cited appellate authority that a defendant's failure to provide evidence as to when, where, or by whom objections were made, or that it complained about equipment or services supplied, supports summary judgment on account stated, citing: Jovee Contracting Corp. v AIA Environmental Corp., (283 AD2d 398 [2d Dept 2001]); Wit's End Giftique v Ianniello, (277 AD2d 684 [3d Dept 2000]); Biegen v Paul K. Rooney, P.C., (269 AD2d 264 [1st Dept 2000]); Robert Half Intl. v Re-Track USA, (261 AD2d 376 [2d Dept 1999]).

Here, Defendants' submissions do not identify invoice numbers, dates, amounts, or written protests; nor do they provide competent proof of a timely objection to the invoices and statements. In contrast, Plaintiff proffers evidence of regular invoicing, account statements, partial payments [*7]during the project period, and an absence of documented objection in the Customer Report.

Accordingly, Plaintiff is entitled to summary judgment on account stated.

Plaintiff seeks interest at the highest rate permitted by New York law as set forth in the credit agreement, or, at minimum, prejudgment interest pursuant to CPLR § 5001 [a]. Plaintiff's papers contend that the award of interest is mandatory and cite authority concluding that interest was required where the claim was "in the nature of a breach of contract" (Ogletree, Deakins, Nash, Smoak & Stewart, P.C. v. Albany Steel, Inc., 243 AD2d 877, 879 [3d Dept 1997], quoting Hudson View II Assocs. v. Gooden, 222 AD2d 163, 168 [1st Dept 1996]; see also, Levitt v Wallenstein, 43 Misc 3d 138(A) [2d Dept 2014]).

Plaintiff further cites CPLR § 5001 [b] for the principle that interest "shall be computed from the earliest ascertainable date the cause of action existed," and relies upon authority that a breach of contract cause of action arises when the breach occurred and the claim accrued (see CPLR § 5001 [b]; De Long Corp. v Morrison-Knudsen Co., 14 NY2d 346 [1964]; 155 Henry Owners Corp. v Lovlyn Realty Co., 231 AD2d 559 [2d Dept 1996]). Plaintiff further cites the Court of Appeals' discussion of statutory mandate for interest on breach of contract awards (see Brushton-Moira Cent. Sch. Dist. v Fred H. Thomas Assoc., P.C., 91 NY2d 256 [1998]) (awarding interest "pursuant to statutory mandate" because CPLR § 5001 [a] provides that interest "shall be recovered upon a sum awarded for a breach of contract").

Consistent with the authorities cited in the submissions, Plaintiff is entitled to interest as provided in the agreement or, at minimum, statutory prejudgment interest pursuant to CPLR § 5001 [a] and CPLR § 5001 [b], computed from the earliest ascertainable date the cause of action existed as established by the submissions.

Plaintiff seeks reasonable attorneys' fees incurred in enforcement. Plaintiff relies on the principle that, under the "American rule," attorneys' fees are incidents of litigation and may not be recovered absent authorization by agreement, statute, or court rule (see Hooper Assoc. v AGS Computers, 74 NY2d 487 [1989]; 214 Wall St. Assoc., LLC v Medical Arts-Huntington Realty, 99 AD3d 988 [2d Dept 2012]; Lang v Zlotnick, 236 AD3d 635 [2d Dept 2025]; Owens v Tompkins Bank of Castile, 170 AD3d 1683 [4th Dept 2019]).

Plaintiff further relies on the principle that, where an agreement clearly establishes a party's obligation to pay the other party's reasonable fees and costs incurred in enforcing contractual rights, an award of attorneys' fees is appropriate and required (see Adesso Cafe Bar & Grill, Inc. v Burton, 74 AD3d 1253 [2d Dept 2010]; Owens v. Tompkins Bank of Castile, 170 AD3d 1683, 1685 [4th Dept 2019]; Pelc v. Berg, 68 AD3d 1672, 1673 [4th Dept 2009].

Plaintiff identifies the relevant credit-agreement provisions as follows: "Customer agrees to pay all reasonable attorney fees, collection costs, and court costs incurred by United Rentals in enforcing these terms and conditions," and "Customer agrees to the terms and conditions as stated [*8]on each and every United Rental's invoice." Plaintiff argues the language is clear and unequivocal and relies upon decisional authority recognizing reimbursement for counsel fees under broadly worded contractual provisions.

On these submissions, Plaintiff has established entitlement to an award of reasonable attorneys' fees pursuant to the agreement language quoted in the parties' submissions.

While entitlement is established, the amount must be fixed upon proof. Plaintiff cites that the trial court is "in the best position to determine those factors integral to fixing attorneys' fees" and that, absent abuse of discretion, the determination will not be disturbed (see Piazza Bros. v Pound Ridge Bd. of Fire Comm'rs, 230 AD2d 837 [2d Dept 1996]; Ferreira v Saccento, 286 AD2d 366 [2d Dept 2001]; Ng v Neng, 97 AD3d 645 [2d Dept 2012]; Pelc v Berg, 68 AD3d 1672 [4th Dept 2009]).

Accordingly, a structured post-decision submission is warranted, ensuring the Court can perform its fee-fixing function on a complete, particularized record of counsel's work, time, rates, and costs, and ensuring Defendants have a meaningful opportunity to be heard on reasonableness.

To ensure the fee component is determined with requisite rigor and adversarial fairness, the following procedure shall govern:

1. Plaintiff's fee application. Within 30 days after service of this Decision and Order with Notice of Entry, Plaintiff shall file and serve an affirmation of counsel setting forth:

(a) the contractual basis for fees, including the quoted agreement provisions relied upon,

(b) contemporaneous time records or, if not available, a detailed itemization of services rendered, identifying dates, time expended, and task descriptions,

(c) counsel's hourly rates and the factual basis asserted to support those rates,

(d) the total fees sought, and;

(e) collection costs and court costs sought under the agreement.

2. Defendants' objections. Within 21 days after service of Plaintiff's fee application, Defendants may file and serve written objections limited to the reasonableness of the amount sought, including challenges to hours, rates, duplication, or categories of work.

3. Plaintiff's reply. Within 14 days after service of any objections, Plaintiff may file and serve a reply affirmation addressing the objections.

4. Determination. Upon completion of submissions, the Court shall fix the amount of reasonable attorneys' fees, collection costs, and court costs on the papers unless the Court determines that a limited hearing is necessary to resolve discrete factual issues bearing on reasonableness.

Accordingly, it is hereby:

ORDERED that Plaintiff's motion pursuant to CPLR § 3212 is GRANTED; and it is further

ORDERED that Plaintiff is awarded summary judgment against Defendants Dominick [*9]Detore and 2 D Construction Corp. on Plaintiff's causes of action sounding in breach of contract and account stated, based upon Plaintiff's prima facie evidentiary showing and Defendants' failure to raise a triable issue of material fact; and it is further

ORDERED that judgment shall be entered in favor of Plaintiff and against Defendants Dominick Detore and 2 D Construction Corp., jointly and severally, in the principal amount of $1,588,013.40 as of March 31, 2023, inclusive of interest and late fees as set forth in Plaintiff's sworn account statement proof; and it is further

ORDERED that Plaintiff is awarded interest as provided in the parties' agreement, or, at minimum, statutory prejudgment interest pursuant to CPLR § 5001 [a] and CPLR § 5001 [b], computed from the earliest ascertainable date the cause of action existed, in accordance with the authorities cited in the parties' submissions, including De Long Corp. v Morrison-Knudsen Co., 14 NY2d 346, 348 [1964]; 155 Henry Owners Corp v. Lovlyn Realty Co., 231 AD2d 559 [2d Dept 1996], Ogletree, Deakins, Nash, Smoak & Stewart, P.C. v Albany Steel, Inc., 243 AD2d 877 [3d Dept 1997], quoting Hudson View II Assocs. v Gooden, 222 AD2d 163 [1st Dept 1996], and Brushton-Moira Cent. Sch. Dist. v Fred H. Thomas Assoc., P.C., 91 NY2d 256 [1998]; and it is further

ORDERED that Defendants' affirmative defenses and counterclaims are DISMISSED WITH PREJUDICE, as requested in Plaintiff's motion; and it is further

ORDERED that Plaintiff is awarded reasonable attorneys' fees, collection costs, and court costs pursuant to the agreement language quoted in the parties' submissions; and it is further

ORDERED that the amount of such attorneys' fees, collection costs, and court costs shall be fixed pursuant to the following schedule: (i) Plaintiff shall file and serve its fee application within 30 days after service of this Decision and Order with Notice of Entry; (ii) Defendants may file and serve objections within 21 days thereafter; (iii) Plaintiff may file and serve a reply within 14 days after service of objections; and (iv) thereafter the Court shall fix the amount on the papers unless a limited hearing is deemed necessary; and it is further

ORDERED that Plaintiff shall serve a copy of this Decision and Order with Notice of Entry upon Defendants.

This constitutes the Decision and Order of the Court.