Rand Rosenzweig Smith Radley Gordon & Burstein, LLP v. Berger

Appellate Division of the Supreme Court of New York

Rand Rosenzweig Smith Radley Gordon & Burstein, LLP v. Berger

248 A.D.2d 129, 669 N.Y.S.2d 555, 1998 N.Y. App. Div. LEXIS 1903

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

DecidedMarch 3, 1998

StatusPublished

Cited by2 cases

This text of 248 A.D.2d 129 (Rand Rosenzweig Smith Radley Gordon & Burstein, LLP v. Berger) 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

Rand Rosenzweig Smith Radley Gordon & Burstein, LLP v. Berger, 248 A.D.2d 129, 669 N.Y.S.2d 555, 1998 N.Y. App. Div. LEXIS 1903 (N.Y. Ct. App. 1998).

Pincite

Opinion

—Order, Supreme Court, New York County (Leland De-Grasse, J.), entered on or about October 16, 1996, which, inter alia, granted plaintiffs motion for a default judgment against defendant Pheo Productions, Inc. and granted plaintiffs motion for summary judgment against individual defendant Berger insofar as it concerned the first, third and seventh causes of action, unanimously affirmed, with costs.

[130]*130The individual defendant does not contest his receipt of a bill, dated June 7, 1995, for the outstanding balance due to plaintiff law firm. Nor, contrary to his argument, did the individual defendant object to the account stated in that bill when he subsequently wrote plaintiff law firm to arrange terms for the bill’s payment. We see no reason to except the individual defendant’s conduct with respect to the subject bill from the oft-stated rule that generally “receipt and retention of [an obligee’s] accounts, without objection within a reasonable time, and agreement to pay a portion of the indebtedness, [gives] rise to an actionable account stated, thereby entitling [the obligee] to summary judgment in its favor” (Rosenman Colin Freund Lewis & Cohen v Edelman, 160 AD2d 626; see also, Rosenman Colin Freund Lewis & Cohen v Neuman, 93 AD2d 745, 746; Fink, Weinberger, Fredman, Berman & Lowell v Pet-rides, 80 AD2d 781, appeal dismissed 53 NY2d 1028).

Respecting the individual defendant’s liability for amounts billed by plaintiff for services to the corporate defendant, we note that the corporate defendant’s liability has been established by a judgment entered on default and that the individual defendant does not dispute that he guaranteed payment of the corporate defendant’s obligations to plaintiff. The individual defendant may not avoid his obligation pursuant to his guarantee by claiming that he is neither an officer nor a shareholder of the corporate defendant. Defendant’s obligation by reason of his guarantee remains regardless of the nature of his involvement, if any, with the corporate defendant (cf., Walcutt v Clevite Corp., 13 NY2d 48).

We have considered defendants’ remaining arguments and find them to be without merit. Concur — Milonas, J. P., Nardelli, Williams and Mazzarelli, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—Order, Supreme Court, New York County (Leland De-Grasse, J.), entered on or about October 16, 1996, which, inter alia, granted plaintiffs motion for a default judgment against defendant Pheo Productions, Inc. and granted plaintiffs motion for summary judgment against individual defendant Berger insofar as it concerned the first, third and seventh causes of action, unanimously affirmed, with costs.

[130]*130The individual defendant does not contest his receipt of a bill, dated June 7, 1995, for the outstanding balance due to plaintiff law firm. Nor, contrary to his argument, did the individual defendant object to the account stated in that bill when he subsequently wrote plaintiff law firm to arrange terms for the bill’s payment. We see no reason to except the individual defendant’s conduct with respect to the subject bill from the oft-stated rule that generally “receipt and retention of [an obligee’s] accounts, without objection within a reasonable time, and agreement to pay a portion of the indebtedness, [gives] rise to an actionable account stated, thereby entitling [the obligee] to summary judgment in its favor” (Rosenman Colin Freund Lewis & Cohen v Edelman, 160 AD2d 626; see also, Rosenman Colin Freund Lewis & Cohen v Neuman, 93 AD2d 745, 746; Fink, Weinberger, Fredman, Berman & Lowell v Pet-rides, 80 AD2d 781, appeal dismissed 53 NY2d 1028).

Respecting the individual defendant’s liability for amounts billed by plaintiff for services to the corporate defendant, we note that the corporate defendant’s liability has been established by a judgment entered on default and that the individual defendant does not dispute that he guaranteed payment of the corporate defendant’s obligations to plaintiff. The individual defendant may not avoid his obligation pursuant to his guarantee by claiming that he is neither an officer nor a shareholder of the corporate defendant. Defendant’s obligation by reason of his guarantee remains regardless of the nature of his involvement, if any, with the corporate defendant (cf., Walcutt v Clevite Corp., 13 NY2d 48).

We have considered defendants’ remaining arguments and find them to be without merit. Concur — Milonas, J. P., Nardelli, Williams and Mazzarelli, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

248 A.D.2d 129, 669 N.Y.S.2d 555, 1998 N.Y. App. Div. LEXIS 1903, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rand-rosenzweig-smith-radley-gordon-burstein-llp-v-berger-nyappdiv-1998.

Opinion

Related

Cite This Page — Counsel Stack