Pierce v. Victor

Appellate Division of the Supreme Court of New York

Pierce v. Victor

1 A.D.3d 247, 767 N.Y.S.2d 576, 2003 N.Y. App. Div. LEXIS 12172

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 20, 2003

StatusPublished

This text of 1 A.D.3d 247 (Pierce v. Victor) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pierce v. Victor, 1 A.D.3d 247, 767 N.Y.S.2d 576, 2003 N.Y. App. Div. LEXIS 12172 (N.Y. Ct. App. 2003).

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Opinion

Judgment, Supreme Court, New York County (Harold Tompkins, J.), entered January 30, 2003, in favor of plaintiff and against defendants in the amount of $66,843.35, plus interest, costs and disbursements, unanimously affirmed, with costs.

No basis exists to disturb the trial court’s finding discrediting the individual defendant’s testimony that he orally objected to plaintiffs April 5, 1995 bill and subsequent written communications demanding its payment (see Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992]). It does not avail defendant that he objected to earlier bills that plaintiff deemed satisfied after reduced payments, and no portions of which were carried over into the April 5, 1995 bill. Accordingly, plaintiff was properly granted judgment on his cause of action for an account stated based on the April 5, 1995 bill (see Rosenman Colin Freund Lewis & Cohen v Edelman, 160 AD2d 626 [1990]). Defendant trust was properly held jointly and severally liable with the individual defendant since a disposition in trust for the use of the creator is void as against the existing or subsequent creditors of the creator (EPTL 7-3.1 [a]). We have considered and rejected defendants’ other arguments. Concur—Buckley, P.J., Rosenberger, Ellerin, Williams and Gonzalez, JJ.

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Judgment, Supreme Court, New York County (Harold Tompkins, J.), entered January 30, 2003, in favor of plaintiff and against defendants in the amount of $66,843.35, plus interest, costs and disbursements, unanimously affirmed, with costs.

No basis exists to disturb the trial court’s finding discrediting the individual defendant’s testimony that he orally objected to plaintiffs April 5, 1995 bill and subsequent written communications demanding its payment (see Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992]). It does not avail defendant that he objected to earlier bills that plaintiff deemed satisfied after reduced payments, and no portions of which were carried over into the April 5, 1995 bill. Accordingly, plaintiff was properly granted judgment on his cause of action for an account stated based on the April 5, 1995 bill (see Rosenman Colin Freund Lewis & Cohen v Edelman, 160 AD2d 626 [1990]). Defendant trust was properly held jointly and severally liable with the individual defendant since a disposition in trust for the use of the creator is void as against the existing or subsequent creditors of the creator (EPTL 7-3.1 [a]). We have considered and rejected defendants’ other arguments. Concur—Buckley, P.J., Rosenberger, Ellerin, Williams and Gonzalez, JJ.

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Bluebook (online)

1 A.D.3d 247, 767 N.Y.S.2d 576, 2003 N.Y. App. Div. LEXIS 12172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pierce-v-victor-nyappdiv-2003.

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