byegone

Need New York Case Law ~ Hearsay Exception & Bill of Sale

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Can anyone point me to some good New York case law (high courts) involving JDB &

Hearsay Exception

Bill of Sale that does not have the defendansts name or account number on it.

And of course any New York case law I can use for Proving Elements of Account Stated or Breach of Contract

Thanks!!

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Thanks Bruno , I can always count on you to respond....

I was expecting a reply of : This request is to overly burdensome ... LOL

I don't have time to sit and dig through thousands of Google Scholar cases right now.... I was hoping someone may just have em on hand. xangelx

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midland funding Account Stated - Google Scholar

Factual Issues Preclude both Summary Judgment and Dismissal for the Account Stated

An account stated is an agreement between the parties to an account based upon prior transactions between them with respect to the correctness of the account items and the balance due. Ross v. Sherman, 57 A.D.3d 758, 759 (2d Dept. 2008). The agreement may be express or implied from the retention of an account rendered for an unreasonable period of time without objection and from the surrounding circumstances. Jim-Mar Corp. v. Aquatic Const., Ltd., 195 A.D.2d 868, 869 (3d Dept. 1993), lv. app. den., 82 N.Y.2d 660 (1993). 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 where only one inference is rationally possible. Yanelli, Zevin & Civardi v Sakol, 298 A.D.2d 579, 580 (2d Dept. 2002).

An essential element of an account stated is an agreement with respect to the amount of the balance due. Interman Indus. Products, Ltd. v. R.S.M. Electron Power, 37 N.Y.2d 151, 153-54 (1975). An action on an account stated is established by proving that defendant received and retained bills for services rendered or goods provided to the defendant without objection. Nebraskaland, Inc. v. Best Selections, Inc., 303 A.D.2d 662, 664 (2d Dept. 2003). A cause of action for an account stated cannot be maintained when plaintiff does not establish that an account was presented to the defendant or where the defendant establishes that it contested the charges. M & A Constr. Corp. v. McTague, 21 A.D.3d 610, 611 (3d Dept. 2005).

A party meets its initial burden of establishing entitlement to judgment as a matter of law on a cause of action for an account stated by establishing, with admissible evidence, that it delivered one or more invoices to defendant for the amount claimed and that defendant either retained the invoices without objection or made partial payment. Morrison Cohen Singer and Weinstein, LLP v. Waters, 13 A.D.3d 51, 52 (1st Dept. 2004). Here, there are factual disputes regarding, inter alia, whether Defendants objected to the invoices that Plaintiff sent to Defendants. Accordingly, the Court denies Plaintiffs motion for summary judgment, and also denies Defendants' motion for dismissal and/or summary judgment, with respect to the causes of action based on an account stated.

To establish a cause of action for breach of contract, one must demonstrate: 1) the existence of a contract between the plaintiff and defendant, (2) consideration, 3) performance by the plaintiff, (4) breach by the defendant, and (5) damages resulting from the breach. Furia v. Furia, 116 A.D.2d 694 (2d Dept. 1986).

Edited by racecar

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