The following e-filed documents listed on NYSCEF (Motion No. 007) numbered 128-170 were read on this motion. Oral argument was completed on February 13, 2025.

Upon the foregoing documents, Motion Sequence No. 007 is resolved and therefore, it is hereby,

ORDERED, that Plaintiff's Motion Sequence No. 007 request for summary judgment pursuant to CPLR § 3212 with respect to Plaintiff's causes of action for breach of contract, unjust enrichment, and account stated as against the Defendant, is DENIED with prejudice; and it is further,

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

On November 10, 2020, Plaintiff commenced this action by filing a summons and motion for summary judgment in lieu of complaint, alleging that it was the holder of a promissory note defaulted on by the Defendant. (NY St Cts Filing [NYSCEF] Doc Nos. 1-10). The motion for summary judgment in lieu of complaint was denied with prejudice on September 21, 2021. (NY St Cts Filing [NYSCEF] Doc No. 36). Plaintiff filed a Complaint on November 4, 2021 (NY St Cts Filing [NYSCEF] Doc No. 42), and on November 15, 2021, Defendant answered and asserted the Counterclaims. (NY St Cts Filing [NYSCEF] Doc No. 44).

On September 5, 2024, the Court issued a Trial Certification Order directing Plaintiff to file a Note of Issue by September 19, 2024, and ordering that summary judgment motions shall be filed within 60 days of the filing of the Note of Issue. (NY St Cts Filing [NYSCEF] Doc No. 150). Plaintiff filed the Note of Issue on September 23, 2024, four days beyond the Court's deadline. (NY St Cts Filing [NYSCEF] Doc No. 151).

Plaintiff filed Motion Sequence No. 007 by Notice of Motion on November 22, 2024, seeking, pursuant to CPLR § 3212, summary judgment as a matter of law as to Defendant's liability to with respect to the second, third, and fourth causes of action asserted in Plaintiff's Verified Complaint. Defendant filed opposition to Motion Sequence No. 007 on January 29, 2025. Plaintiff filed reply on February 11, 2025. On February 13, 2025, oral argument was heard on Motion Sequence No. 007.

In 2017, the New York City Department of Design and Construction, hereinafter referred to as DDC, awarded the Plaintiff, hereinafter JRC the prime contract for the reconstruction of sewers, water main storm sewers, water mains, and curbs and sidewalks for Glen Street between Victory Boulevard and Parish and Cannon Avenues in Staten Island, hereinafter referred to as the project. The prime contract includes a "Utility Interferences (UI) Section" for interference agreements between utility companies and JRC that may impact the public works project.

Defendant, hereinafter referred to as OCG, is a fiberoptic carrier that provides connectivity to its governmental, law enforcement, enterprise, and residential customers over the fiberoptic network that it built throughout the five boroughs of the City of New York and Long Island.

The Project-related work for which JRC was responsible included a significant portion of Victory Boulevard. A good portion of OCG's cables on Staten Island are located on the northern side of Victory Boulevard on telephone poles that are twenty to twenty-two feet above ground.

In or about September 2018, OCG was contacted by the DDC and advised that OCG cables were located within the physical limits of JRC's Project. On or about May 9, 2019, the Parties entered a contract, the Interference Agreement (NY St Cts Filing [NYSCEF] Doc No. 141). Pursuant to this agreement, JRC, in consideration of OCG's payment to JRC of a lump sum in the amount of $150,000.00 via thirty-six (36) equal monthly payments of $4,395.31 over a three (3) year term commencing on May 1, 2019, JRC was obligated to maintain OCG cables/facilities as part of the Project and otherwise insure facilities were maintained and service/usability of such facilities was not interrupted." (see id at page 1). The Interference [*2]Agreement further provided that OCG would be in default should OCG fail to make any payment due within ten (10) days of when such payment is due. (see id at page 3).

OCG contends that it was required to use smaller size and capacity equipment than it otherwise would have in the absence of such overhead interference to avoid causing damage to OCG's interfering overhead facility. (NY St Cts Filing [NYSCEF] Doc No. 131 pages 38-39). Defendant maintains its cable was not in the way of JRC's equipment as the tight quarters required JRC to use smaller machines to perform its work (NY St Cts Filing [NYSCEF] Doc No. 132 pages 109-110).

JRC maintains that throughout the entirety of the Project's lifetime, it properly maintained, and never caused any damage, service interruptions, and/or outages whatsoever with respect to OCG's facilities located within the Project's physical limits. OCG contends Plaintiff could have performed the Interference Work without an Interference Agreement because the work would had no impact on OCG's cable as there were other lines below OCG's cable that would have had to maintained. Further, OCG had no drop wires running to any residences or businesses on Victory Boulevard.

JRC was not required to document the Interference Work it provided on behalf of OCG and that no such records were kept. OCG alleges it repeatedly demanded that JRC submit proof that it was performing the Interference Work for OCG's cable for which it was seeking payment.

JRC contends that beginning on May 1, 2019, JRC began invoicing OCG for its monthly payment and in none of the e-mails exchanged by the Parties did OCG protest, object to, or otherwise dispute the legitimacy of any invoice. OCG counters that soon after the commencement of the Project, and after receiving several invoices, OCG demanded that JRC submit proof in the form of progress reports and photographs showing the protection work that JRC was performing. The requests for proof were allegedly made orally directly to both JRC personnel Toni-Anne Struyk and Jason Cruz.

Defendant contends that Plaintiff's motion is procedurally defective because it is not supported by a copy of the pleadings. The Complaint, the Answer, Counterclaims and Reply to Counterclaims are part of the Court's file on NYSCEF but have not been made a part of the Defendant's motion. (NY St Cts Filing [NYSCEF] Doc Nos. 128-144).

Defendant further contends that Plaintiff's motion is unsupported by an affidavit or affirmation that recites the material facts nor is there an affidavit or affirmation stating facts that Defendant has no defense to the Complaint. The affidavit of Jason Cruz (NY St Cts Filing [NYSCEF] Doc No. 135) and the Affirmation by Plaintiff's counsel (NY St Cts Filing [NYSCEF] Doc No. 130) only refer to exhibits, and neither recite any facts in support of the motion. The Affidavit of Jason Cruz was notarized by a New Jersey notary public and not accompanied by a certificate of conformity pursuant to CPLR § 2309 [c]. (NY St Cts Filing [NYSCEF] Doc No. 135).

Defendant maintains that Plaintiff's Statement of Undisputed Material Facts is defective and not in compliance with the Rules of the Court in its form and content. (NY St Cts Filing [NYSCEF] Doc No. 129). Plaintiff filed the omitted pleadings in their reply. (NY St Cts Filing [NYSCEF] Doc No. 169).

"Notwithstanding that CPLR § 3212 [b] requires that motions for summary judgment be supported by a copy of the pleadings, CPLR § 2001 permits a court, at any stage of an action, to 'disregard a party's mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced'" (see Long Is. Pine Barrens Socy., Inc. v County of Suffolk, 122 AD3d 688 [2d Dept 2014] quoting Avalon Gardens Rehabilitation & Health Care Ctr., LLC v Morsello, 97 AD3d 611 [2d Dept 2012]; citing CPLR § 2001; U.S. Bank N.A. v Eaddy, 109 AD3d 908 [2d Dept 2013]).

Although the Plaintiff failed to include a copy of the pleadings with their motion for summary judgment, Plaintiff submitted a copy of the pleadings in connection with their reply and the pleadings were readily accessible to the Court and all parties as part of the electronic NYSCEF file. (NY St Cts Filing [NYSCEF] Doc Nos. 42; 44; 60). Under these circumstances, the Court finds that the record is sufficiently complete, and there is no proof that a substantial right of the defendants was impaired by the Plaintiff's failure to submit copies of the pleadings. (see Long Is. Pine Barrens Socy., Inc. v County of Suffolk, 122 AD3d 688 [2d Dept 2014] citing U.S. Bank N.A. v Eaddy, 109 AD3d 908 [2d Dept 2013]; Avalon Gardens Rehabilitation & Health Care Ctr., LLC v Morsello, 97 AD3d 611 [2d Dept 2012]; Welch v Hauck, 18 AD3d 1096 [3rd Dept 2005]; Washington Realty Owners, LLC v 260 Wash. St., LLC, 105 AD3d 675 [1st Dept 2013]).

"[T]he Appellate Division, Second Department, has typically held, since 1951, that the absence of a certificate of conformity is not, in and of itself, a fatal defect (see Midfirst Bank v Agho, 121 AD3d 343 [2d Dept 2014] citing Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 110 AD3d 680 [2d Dept 2013]; Bey v Neuman, 100 AD3d 581 [2d Dept 2012]; Fredette v Town of Southampton, 95 AD3d 940 [2d Dept 2012]; Falah v Stop & Shop Cos., Inc., 41 AD3d 638 [2d Dept 2007]; Smith v Allstate Ins. Co., 38 AD3d 522 [2d Dept 2007]; Raynor v Raynor, 279 AD 671 [2d Dept 1951]).

"The defect is not fatal, as it may be corrected nunc pro tunc" (see id citing U.S. Bank N.A. v Dellarmo, 94 AD3d 746 [2d Dept 2012]), or pursuant to CPLR § 2001, which permits trial courts to disregard mistakes, omissions, defects, or irregularities at any time during an action where a substantial right of a party is not prejudiced (see id citing Matos v Salem Truck Leasing, 105 AD3d 916 [2d Dept 2013]).

Although the Affidavit of Jason Cruz, notarized by a New Jersey notary public, and was not accompanied by a certificate of conformity pursuant to CPLR § 2309 [c] (NY St Cts Filing [NYSCEF] Doc No. 135), the affidavit substantially conformed to the statutory requirements of this State and should be considered by the Court in deciding the motion. (see Meikle v Fremont Inv. & Loan Corp., 125 AD3d 616 [2d Dept 2015] citing Midfirst Bank v Agho, 121 AD3d 343 [2d Dept 2014]).

The Court recognizes the minor delay in filings and accepts Plaintiff counsel's representation in his affirmation that the prior Court, Hon. Catherine M. DiDomenico, excused this minor delay. In its discretion, the Court finds no further issues that rise to the level that would require the Court to deny this motion strictly on procedural defects and notes that such action would simply further delay the final resolution of this action.

"Summary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law. Since it deprives the litigant of his day in court it is considered a drastic remedy which should only be employed when there [*3]is no doubt as to the absence of triable issues" (see Andre v Pomeroy, 35 NY2d 361 [1974] citing Millerton Agway Cooperative, Inc. v Briarcliff Farms, Inc., 17 NY2d 57 [1966]).

"A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions" (see Poon v Nisanov, 162 AD3d 804 [2d Dept 2018] quoting CPLR § 3212 [b]). "[T]he proponent of a summary judgment motion must make 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" (see Sanchez v. Ageless Chimney, Inc., 219 AD3d 767 [2d Dept 2023] quoting Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; citing Winegrad v NY Univ. Med. Ctr., 64 NY2d 851 [1985]). "If the movant makes a prima facie showing, the burden shifts to the opposing party to produce evidence establishing the existence of material issues of fact which require a trial on that issue" (see id citing Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v New York, 49 NY2d 557 [1980]).

"A plaintiff moving for summary judgment on a cause of action asserted in a complaint generally has the burden of establishing, prima facie, all of the essential elements of the cause of action" (see Wedgewood Care Ctr. v Kravitz, 198 AD3d 124 [2d Dept 2021] quoting Poon v Nisanov, 162 AD3d 804 [2d Dept 2018]; citing Nunez v Chase Manhattan Bank, 155 AD3d 641 [2d Dept 2017]; Stukas v Streiter, 83 AD3d 18 [2d Dept 2011]).

"To defeat summary judgment, the nonmoving party need only rebut the prima facie showing made by the moving party so as to demonstrate the existence of a triable issue of fact" (see id quoting Poon v Nisanov, 162 AD3d 804 [2d Dept 2018]; citing Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Stukas v Streiter, 83 AD3d 18 [2d Dept 2011]).

"On a motion for summary judgment, facts must be viewed 'in the light most favorable to the non-moving party'" (see Shabat v State of New York, 177 AD3d 1009 [2d Dept, 2019] quoting Vega v Restani Constr. Corp., 18 NY3d 499 [2012]; Ortiz v Varsity Holdings, LLC, 18 NY3d 335 [2011]).

"The essential elements of a breach of contract cause of action are the existence of a contract, the plaintiff's performance under the contract, the defendant's breach of that contract, and resulting damages" (see Pierce Coach Line, Inc. v Port Wash. Union Free Sch. Dist., 213 AD3d 959 [2d Dept 2023] quoting Ripa v Petrosyants, 203 AD3d 768 [2d Dept 2022], quoting Stewart v Berger, 192 AD3d 940 [2d Dept 2021]).

"To state a cause of action to recover damages for a breach of contract, the plaintiff's allegations must identify the provisions of the contract that were breached" (see id quoting NFA Group v Lotus Research, Inc., 180 AD3d 1060 [2D Dept 2020] quoting Barker v Time Warner Cable, Inc., 83 AD3d 750 [2d Dept 2011]; accord Tsatskin v Kordonsky, 189 AD3d 1296 [2d Dept 2020]; Barker v Time Warner Cable, Inc., 83 AD3d 750 [2d Dept 2011]).

"To recover damages for breach of contract, a plaintiff must demonstrate the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach" (see Village of Kiryas Joel v County of Orange, 144 AD3d 895 [2d Dept 2016] citing Alliance Natl. Ins. Co. v Absolut Facilities Mgt., LLC, 140 AD3d 810 [2d Dept 2016]; Legum v Russo, 133 AD3d 638 [2d Dept 2015]).

"To prevail on a cause of action alleging breach of contract, the plaintiff must [*4]demonstrate that it sustained 'actual damages as a natural and probable consequence' of the defendant's breach" (see id quoting Family Operating Corp. v Young Cab Corp., 129 AD3d 1016 [2d Dept 2015], quoting Rakylar v Washington Mut. Bank, 51 AD3d 995 [2d Dept 2008]).

Parties entered a binding and enforceable contract, the Interference Agreement (NY St Cts Filing [NYSCEF] Doc No. 141). Pursuant to this agreement, JRC, in consideration of OCG's payment to JRC of a lump sum in the amount of $150,000.00 [One Hundred and Fifty Thousand Dollars and No Cents] via thirty-six (36) equal monthly payments of $4,395.31 over a three (3) year term commencing on May 1, 2019, JRC was obligated to "[m]aintain OCG cables/facilities as part of the Victory Blvd Municipal Project" and otherwise "insure facilities [were] maintained and service/usability of such facilities [was] not interrupted." (see id at page 1).

The Interference Agreement further provides that OCG would be in default should OCG "fail to make (and [JRC] does not receive) any payment due to [JRC] under this Note or under any of the other Loan Documents within ten (10) days of when such payment is due and payable, whether at maturity or by acceleration or otherwise, except that if payment is not honored due to bank error that can be confirmed in writing by the issuing or payee bank, that would not be a default by OCG" (see id at page 3).

JRC contends that the Interference Agreement does not require JRC to invoice or otherwise affirmatively seek, or request, payment of any sums due and payable thereunder from OCG. (NY St Cts Filing [NYSCEF] Doc No. 141). Plaintiff maintains the "monthly payments will be due on the first day of the month. The first payment will be due on May 1, 2019" (see id at page 2).

OCG contends that JRC breached the Interference Agreement because it did not perform any Interference Work for OCG. Jason Cruz, a Vice President and Utility Coordinator for the Plaintiff during the project testified he was present on site with OCG at meetings and telephone calls and he was fully involved in all of this [regarding the project]. (NY St Cts Filing [NYSCEF] Doc No. 131 at page 8).

Mr. Cruz was unable to recall how many miles the work covered, (see id at page 11 lines 16-18), where the work started from; what street, (see id at lines 19-23), and for what period Mr. Faheem was the project manager for the Glen Street project (see id at page 12 lines 17-22). When questioned further, Mr. Cruz was also unable to recall either when JRCRUZ commenced work on the project (see id at page 22 lines 18-20) or when JRCRUZ finished its work on the project (see id at lines 21-23). Mr. Cruz further testified that he was unable to recall how often he was at the job site when they were doing the interference work for OCG. (see id at page 68 lines 10-17).

Mr. Cruz maintained that this was a DDC project and DDC required there to be sign-in and sign-out sheets for when people were working at the job site (see id at page 69 lines 12-19); however, he did not recall if there were sign-in sheets for when people worked and were on site at the project. (see id at lines 3-6).

Brad Ickes, President of OCG, testified that their cable runs from the Verrazzano Bridge over to South Avenue, down south, down Victory, and then down Arthur Kill to the south tip of Staten Island (NY St Cts Filing [NYSCEF] Doc No. 132 at page 62 lines 19-25) and a good portion of OCG's cables on Staten Island are located on the northern side of Victory Boulevard. (see id at page 63-65).

Mr. Ickes maintained that OCG's facilities do not cross any intersections on Victory Boulevard, nor do the facilities cross over Victory Boulevard, except that the facilities do cross [*5]the side streets along the side of Victory Boulevard where the cables are located. (see id at pages 66-67). Mr. Ickes continued testifying that

We don't have any drop wires going to businesses or houses.

We have no other apparatus, equipment, anything, except just that cable that goes straight through. Because that cable does not service anyone in that neighborhood. So, there's just one cable on one strand going straight through. It's not like cable TV or Verizon has multiple little drop wires going to everyone's house. (see id at page 68 lines 6-15).

Mr. Ickes further testified regarding the location of OCG's cable.

Q Okay. So you're — there's three cables that are pretty evenly spaced at the bottom of all of the cables that are passing by this vertical pole, right?

A Yes. On this particular pole that's the way the setup is.

Q And then the top most of those three at the bottom of this, they're all kind of parallel to one another, the top most is OCG's?

A Yes.

Q About how many feet off the ground is that?

A That's probably I would say in that area about 20 feet, 22 feet. Somewhere around there. (see id at pages 320-321).

Mr. Ickes testified that due to the location of OCG's cable on the pole he did not expect that JRC would perform any type of interference work for its cable on Victory Boulevard. (see id at page 102).

DDC only identifies in Schedule U-2 of the Prime Contract as an interfering facility: Con Edison, Verizon, and Time Warner. (NY St Cts Filing [NYSCEF] Doc No. 136 at page 995). Defendant contends that since OCG's cable was over 20 to 22 feet above ground and near the top of the telephone poles on Victory Boulevard, so it would have been nearly impossible for JRC to hit or damage OCG's cable when using their machines.

Mr. Ickes testified that

the height of OCG's cable compared to everyone else really was not in the way, in my opinion, if you guys are using the correct equipment to put your water main in.

You don't need to bring a huge machine in when you have drop wires. You have 13 KB electric above you. You have secondaries. You have two 5K three face feeders on the poles. Plus then you have the commercials that are there. So to answer your question, your maintaining of the facilities above is minimized because Cruz used smaller machines or width to do the work. (NY St Cts Filing [NYSCEF] Doc No. 132 at pages 109-110).

Mr. Ickes further testified as follows:

What I'm saying is in order for them to do this project, they needed to use smaller machines, because the width of the streets, the parking and everything that's there, you're not going to bring huge excavator machines in there.

Plus you're just doing the water main. I think they were doing sewer, which brings you further into the middle of the street because the sewer tends to be in the middle of any street.

So our facilities which are on the poles, which are located on the sidewalk are not in the way of that.

Any crossing going up the side street they're going to use smaller machines, because the width of those streets is so tight that you can't bring bigger machines. And those smaller [*6]machines are not going to have the height to hit the facilities where OCG was located. That's what I'm saying.

From my experience of being in the field with these kind of jobs all over the place. (see id at pages 111-112).

No testimony was provided as to the type of equipment that was used by JRC on the sidewalk underneath the Verizon, Time Warner and OCG utilities.

"To recover damages for breach of contract, a plaintiff must demonstrate the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach" (see Village of Kiryas Joel v County of Orange, 144 AD3d 895 [2d Dept 2016]; citing Alliance Natl. Ins. Co. v Absolut Facilities Mgt., LLC, 140 AD3d 810 [2d Dept 2016]; Legum v Russo, 133 AD3d 638 [2d Dept 2015).

"To prevail on a cause of action alleging breach of contract, the plaintiff must demonstrate that it sustained 'actual damages as a natural and probable consequence' of the defendant's breach" (see id quoting Family Operating Corp. v Young Cab Corp., 129 AD3d 1016 [2d Dept 2015], quoting Rakylar v Washington Mut. Bank, 51 AD3d 995 [2d Dept 2008]).

The Plaintiff must demonstrate that Plaintiff has performed pursuant to the contract to recover damages. "[A] promisee may not recover for a broken promise unless he [or she] has performed his [or her] obligations . . . under the contract" (see MAD52, LLC v Shapiro, 155 AD3d 712 [2d Dept 2017] quoting Unloading Corp. v State, 132 AD2d 543 [2d Dept 1987]).

As per the Parties Interference Agreement, JRCRUZ Corporation was to maintain OCG cables/facilities as part of the Victory Blvd Municipal Project and the sum of this note is payable to ensure facilities are maintained and service/usability of such facilities is not interrupted. (NY St Cts Filing [NYSCEF] Doc No. 141).

The evidence submitted fails to demonstrate that the Interference Work allegedly performed by the Plaintiff was actually performed nor does the evidence even demonstrate that alleged Interference Work was even necessary.

The evidence submitted indicates that DDC did not, at least initially, consider Defendant's cable as interference with the project. Defendant's cable is more than 20 feet above the ground on the sidewalks and above the Verizon and Time Warner utilities on the telephone poles on Victory Boulevard.

Ickes's testimony raises the issue that the location of the Project in Staten Island, where Plaintiff was performing its watermain work, required Plaintiff to use smaller equipment, so any claim by Plaintiff that it was using smaller equipment due to Defendant's cable is misleading. Ickes's contention that the width of the streets at the Project site required Plaintiff tp use smaller equipment to perform its work, and these types of smaller equipment do not have the height to hit Defendant's cable on the sidewalks raise issues of fact.

The daily reports provided are vague and lack any specificity as pertaining to interference work. (NY St Cts Filing [NYSCEF] Doc No. 165).

There remain issues of fact pertaining to whether Plaintiff performed the interference work as required by the contract and Plaintiff has failed to establish its prima facie case for summary judgment. Accordingly, Plaintiff's Motion Sequence No. 007 request for summary judgement pursuant to CPLR § 3212 with respect to its claims asserted for breach of contract and unjust enrichment is DENIED with prejudice.

"An account stated is an agreement, express or implied, between the parties to an account based upon prior transactions between them with respect to the correctness of account items and a specific balance due on them" (see TM 18 Realty, LLC v Copper Wang, Inc., 222 AD3d 904 [2d Dept 2023] quoting Citibank (South Dakota) N.A. v Cutler, 112 AD3d 573 [2d Dept 2013]). "An essential element of an account stated is that the parties came to an agreement with respect to the amount due" (see id quoting Episcopal Health Servs., Inc. v POM Recoveries, Inc., 138 AD3d 917 [2d Dept 2016]; citing Toobian v Toobian, 209 AD3d 907 [2d Dept 2022]).

"Whether a bill has been held without objection for a period of time sufficient to give rise to an inference of assent, in light of all the circumstances presented, is ordinarily a question of fact, and becomes a question of law only in those cases where only one inference is rationally possible" (see Landau v Weissman, 78 AD3d 661 [2d Dept 2010] quoting Yannelli, Zevin & Civardi v Sakol, 298 AD2d 579 [2d Dept 2002]; citing Shelly v Skief, 73 AD3d 1016 [2d Dept 2010]; Epstein v Turecamo, 258 AD2d 502 [2d Dept 1999]; Legum v Ruthen, 211 AD2d 701 [2d Dept 1995]).

In this matter, there is an underlying issue of fact as to whether Plaintiff actually performed the inference work contracted for by the plaintiff and whether there was a breach of contract. Until the underlying issue is resolved, the issue of whether there is account stated for the unpaid invoices is a question of fact to be determined at trial and Plaintiff has failed to establish its prima facie case for summary judgment. Accordingly, Plaintiff's Motion Sequence No. 007 request for summary judgement pursuant to CPLR § 3212 with respect to its claims asserted for an account stated as against Defendant is DENIED with prejudice.

ORDERED, that Plaintiff's Motion Sequence No. 007 request for summary judgment pursuant to CPLR § 3212 with respect to Plaintiff's causes of action for breach of contract, unjust enrichment, and account stated as against the Defendant is DENIED with prejudice; and it is further,

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

The foregoing shall constitute the Decision and Order of this Court.