Appeal by plaintiff from an order of the Civil Court, Queens County (C. Markey, J.), entered March 5, 2002, denying its motion for summary judgment.

Order unanimously modified by providing that plaintiff's motion is granted to the extent of awarding plaintiff partial summary judgment on its cause of action for an account stated, insofar as based on the invoices dated August 9, 2001 and October 12, 2001, and matter remanded to the court below for further proceedings on the remainder of the account stated cause of action and on the breach of contract cause of action; as so modified, affirmed without costs.

Plaintiff proved that it shipped defendant a quantity of brassiere ribbons for which it billed defendant $7,421.60 pursuant to the invoices dated August 9, 2001 and October 12, 2001, defendant's partial payments totaling $3,127, and a lengthy series of discussions with two of defendant's named representatives, who conceded the debt and promised payment, the last assurance occurring 5 months after the second delivery. Such proof established prima facie "an agreement between [the] parties to an account based upon [their] prior transactions . . . with respect to the correctness of the account items and balance due" (Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869 [1993]; see also Interman Ind. Prods. v R. S. M. Electron Power, 37 NY2d 151, 153 [1975]). An account stated is inferred from the defendant's retention of the two invoices for a "significant" amount of time without objection (Ferraioli v Ferraioli, 8 AD3d 163, [*2]164 [2004]) and defendant's partial payment thereon which, on a disputed account, constitutes strong evidence of defendant's acknowledgment of the bill's validity and a virtual admission of the debt (Schneider Fuel Oil v DeGennaro, 238 AD2d 495, 496 [1997]; Shea & Gould v Burr, 194 AD2d 369, 371 [1993]; Agri Fin. v Senter, 105 AD2d 560 [1985]; Parker Chapin Flattau & Klimpl v Daelen Corp., 59 AD2d 375, 378 [1977]).

Defendant's opposing affidavit alleged, essentially, that defendant orally objected to a portion of the delivered goods as nonconforming, but without evidentiary specifics as to when, to whom, and by whom the objection was raised and the content of those communications (Robert Half Intl. v Re-Track USA, 261 AD2d 376, 377 [1999]). While proof of an oral objection may theoretically suffice to avoid summary judgment on an account stated cause of action (Shea & Gould v Burr, 194 AD2d at 371), it is well-settled that a party's "self-serving, bald allegations of oral protests [are] insufficient to raise a triable issue of fact as to the existence of an account stated" (Darby & Darby v VSI Intl., 95 NY2d 308, 315 [2000]; see also Yannelli, Zevin & Civardi v Sokol, 298 AD2d 579, 581 [2002] ["proof of . . . alleged() numerous oral complaints (is) too vague to be afforded evidentiary value"]; Ruskin, Moscou, Evans & Faltischek v FGH Realty Credit Corp., 228 AD2d 294, 296 [1996] [defendant's "belated and self-serving conclusory objection and allegation that some unidentified person had 'objected' to the plaintiff's bills" insufficient to raise a genuine triable issue of fact precluding summary judgment]). Accordingly, plaintiff is entitled to partial summary judgment on its account stated cause of action to the extent of the $4,283.85 balance due on the August 9, 2001 and October 12, 2001 invoices.

However, with respect to the remaining invoices, we note that "an account stated cannot be made the instrument to create liability where none exists" (Gurney, Becker & Bourne v Benderson Dev. Co., 47 NY2d 995, 996 [1979]; JMD Holding Corp. v Congress Fin. Corp., 5 AD3d 334, 335 [2004]). Here, plaintiff's own documentary proof raised a triable issue as to whether the goods to which the remaining invoices apply were delivered, and if delivered, defendant's acceptance thereof. Accordingly, the matter is remanded to the court below for all further proceedings on the remainder of the account stated and breach of contract causes of action.
Decision Date: December 09, 2004