Re-Steel Distrib. Co., Inc. v New Major Bldg. Supply, LLC 2026 NY Slip Op 30718(U) February 26, 2026 Supreme Court, New York County Docket Number: Index No. 654919/2023 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.6549192023.NEW_YORK.001.LBLX036_TO.html[03/10/2026 3:45:54 PM] FILED: NEW YORK COUNTY CLERK 02/26/2026 04:37 PM INDEX NO. 654919/2023 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 02/26/2026
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 654919/2023 RE-STEEL DISTRIBUTION COMPANY, INC. MOTION DATE 02/23/2026 Plaintiff, MOTION SEQ. NO. 002 -v- NEW MAJOR BUILDING SUPPLY, LLC, DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90 were read on this motion to/for JUDGMENT - SUMMARY .
Plaintiff’s motion for summary judgment is granted in part and defendant’s cross-motion
to dismiss is denied.
Background
Plaintiff supplies rebar and rebar accessories manufactured by its parent company. It
contends that it supplied such materials to defendant from 2019 until the spring of 2023. Plaintiff
contends that on November 23, 2022, it contracted to supply 48,810 pounds of rebar to
defendant. It alleges that it hired one of its carriers to make the delivery, which was scheduled
for November 29, 2022.
Plaintiff attaches an email in which it notified defendant about the delivery that day and
defendant responded, “Thank you!” (NYSCEF Doc. No. 47). Plaintiff says the delivery took
place around 11:30 a.m. and that defendant signed a bill of lading in connection with this order.
654919/2023 RE-STEEL DISTRIBUTION COMPANY, INC. vs. NEW MAJOR BUILDING SUPPLY, Page 1 of 5 LLC Motion No. 002
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It argues that the GPS data from its carrier shows that a stop was made at defendant’s place of
business.
Plaintiff issued an invoice for $25,381.20 for the shipment that very day, November 29,
2022. It claims it sent a follow-up email in February 2023 detailing that this invoice, along with
nine other invoices, were over 90 days past due and totaled over $200,000 (defendant apparently
eventually paid the other invoices and only this delivery is at issue in this case). Plaintiff argues
that defendant did not dispute the invoice at issue here and in an email response, defendant
claimed that it would look into it (NYSCEF Doc. No. 52).
Plaintiff insists it inquired again about the status of unpaid invoices in April 2023 to no
avail. It contends that defendant did not raise any dispute about the specific invoice at issue here
until May 2023, nearly six months after the shipment date.
In opposition and in support of its motion to dismiss, defendant contends that the
signature on the bill of lading does not match any of its employees. It argues that there are
material issues of fact regarding whether or not the delivery was actually made on November 29,
2022. Defendant claims that once it found out that there was an issue with delivery for the
invoice at issue in April 2023, it “promptly made [an] effort to confirm if the delivery has
actually been made” (NYSCEF Doc. No. 83, ¶ 35). Defendant also argues that the Court should
not dismiss its counterclaim for “a frivolous action.”
Finally, defendant argues that this case should be dismissed for lack of proper service
because service was effectuated on an individual who was not an employee of defendant.
In reply, plaintiff complains that certain documents raised by defendant were disclosed
for the first time in opposition to its motion despite the fact that they should have been turned
654919/2023 RE-STEEL DISTRIBUTION COMPANY, INC. vs. NEW MAJOR BUILDING SUPPLY, Page 2 of 5 LLC Motion No. 002
2 of 5 [* 2] FILED: NEW YORK COUNTY CLERK 02/26/2026 04:37 PM INDEX NO. 654919/2023 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 02/26/2026
over during discovery. It insists that Mr. Roth was never disclosed as a potential witness and is
now a key part of defendant’s opposition.
Discussion
As an initial matter, the Court grants the branch of plaintiff’s motion that seeks summary
judgment on its account stated cause of action. “An account stated has long been defined as an
account balanced and rendered, with an assent to the balance express or implied; so that the
demand is essentially the same as if a promissory note had been given for the balance. It is an
agreement, independent of the underlying agreement, regarding the amount due on past
transactions” (Aronson Mayefsky & Sloan, LLP v Praeger, 228 AD3d 182, 184-85, 212 NYS3d
52 [1st Dept 2024] [internal quotations and citations omitted]). “[I]nvoices seeking payment for
professional services rendered, without objection within a reasonable time, gives rise to an
actionable account stated, thereby entitling the plaintiff to summary judgment in its favor (id. at
185).
Defendant retained and did not object to the invoice, which was sent on November 29,
2022, until the middle of May 2023 (see NYSCEF Doc. No. 56). Waiting nearly six months is
simply too long and supports a finding that plaintiff is entitled to summary judgment on its
account stated claim (Spectra Audio Research, Inc. v 60-86 Madison Ave. Dist. Mgt. Assn., Inc.,
267 AD2d 23, 24, 699 NYS2d 360 [1st Dept 1999] [awarding summary judgment where a
defendant retained bills without objection for five months).
The email communications show that plaintiff inquired about payments in February and
April 2023 only for defendant to suddenly, in mid-May, raise questions about the delivery. As
plaintiff aptly responded in an email after defendant started to complain, “Good to bring it up 6
months later when we send you an A/R report every 2 weeks” (NYSCEF Doc. No. 56). That is
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the exact purpose of an account stated cause of action—to discourage a recipient of goods or
services from raising objections about an invoice long after the invoice is issued. Such a delay
makes it exceedingly difficult to look into issues raised—here, for instance, the parties suggested
they might need to look for surveillance video.
While defendant’s contention that it never signed the bill of lading raised an issue of fact
for plaintiff’s first cause of action for breach of contract, it does not state a material issue of fact
for the account stated claim. Defendant had more than enough time to raise an objection and did
not.
The Court also dismisses defendant’s counterclaim for a frivolous cause of action.
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Re-Steel Distrib. Co., Inc. v New Major Bldg. Supply, LLC 2026 NY Slip Op 30718(U) February 26, 2026 Supreme Court, New York County Docket Number: Index No. 654919/2023 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.6549192023.NEW_YORK.001.LBLX036_TO.html[03/10/2026 3:45:54 PM] FILED: NEW YORK COUNTY CLERK 02/26/2026 04:37 PM INDEX NO. 654919/2023 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 02/26/2026
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 654919/2023 RE-STEEL DISTRIBUTION COMPANY, INC. MOTION DATE 02/23/2026 Plaintiff, MOTION SEQ. NO. 002 -v- NEW MAJOR BUILDING SUPPLY, LLC, DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90 were read on this motion to/for JUDGMENT - SUMMARY .
Plaintiff’s motion for summary judgment is granted in part and defendant’s cross-motion
to dismiss is denied.
Background
Plaintiff supplies rebar and rebar accessories manufactured by its parent company. It
contends that it supplied such materials to defendant from 2019 until the spring of 2023. Plaintiff
contends that on November 23, 2022, it contracted to supply 48,810 pounds of rebar to
defendant. It alleges that it hired one of its carriers to make the delivery, which was scheduled
for November 29, 2022.
Plaintiff attaches an email in which it notified defendant about the delivery that day and
defendant responded, “Thank you!” (NYSCEF Doc. No. 47). Plaintiff says the delivery took
place around 11:30 a.m. and that defendant signed a bill of lading in connection with this order.
654919/2023 RE-STEEL DISTRIBUTION COMPANY, INC. vs. NEW MAJOR BUILDING SUPPLY, Page 1 of 5 LLC Motion No. 002
1 of 5 [* 1] FILED: NEW YORK COUNTY CLERK 02/26/2026 04:37 PM INDEX NO. 654919/2023 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 02/26/2026
It argues that the GPS data from its carrier shows that a stop was made at defendant’s place of
business.
Plaintiff issued an invoice for $25,381.20 for the shipment that very day, November 29,
2022. It claims it sent a follow-up email in February 2023 detailing that this invoice, along with
nine other invoices, were over 90 days past due and totaled over $200,000 (defendant apparently
eventually paid the other invoices and only this delivery is at issue in this case). Plaintiff argues
that defendant did not dispute the invoice at issue here and in an email response, defendant
claimed that it would look into it (NYSCEF Doc. No. 52).
Plaintiff insists it inquired again about the status of unpaid invoices in April 2023 to no
avail. It contends that defendant did not raise any dispute about the specific invoice at issue here
until May 2023, nearly six months after the shipment date.
In opposition and in support of its motion to dismiss, defendant contends that the
signature on the bill of lading does not match any of its employees. It argues that there are
material issues of fact regarding whether or not the delivery was actually made on November 29,
2022. Defendant claims that once it found out that there was an issue with delivery for the
invoice at issue in April 2023, it “promptly made [an] effort to confirm if the delivery has
actually been made” (NYSCEF Doc. No. 83, ¶ 35). Defendant also argues that the Court should
not dismiss its counterclaim for “a frivolous action.”
Finally, defendant argues that this case should be dismissed for lack of proper service
because service was effectuated on an individual who was not an employee of defendant.
In reply, plaintiff complains that certain documents raised by defendant were disclosed
for the first time in opposition to its motion despite the fact that they should have been turned
654919/2023 RE-STEEL DISTRIBUTION COMPANY, INC. vs. NEW MAJOR BUILDING SUPPLY, Page 2 of 5 LLC Motion No. 002
2 of 5 [* 2] FILED: NEW YORK COUNTY CLERK 02/26/2026 04:37 PM INDEX NO. 654919/2023 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 02/26/2026
over during discovery. It insists that Mr. Roth was never disclosed as a potential witness and is
now a key part of defendant’s opposition.
Discussion
As an initial matter, the Court grants the branch of plaintiff’s motion that seeks summary
judgment on its account stated cause of action. “An account stated has long been defined as an
account balanced and rendered, with an assent to the balance express or implied; so that the
demand is essentially the same as if a promissory note had been given for the balance. It is an
agreement, independent of the underlying agreement, regarding the amount due on past
transactions” (Aronson Mayefsky & Sloan, LLP v Praeger, 228 AD3d 182, 184-85, 212 NYS3d
52 [1st Dept 2024] [internal quotations and citations omitted]). “[I]nvoices seeking payment for
professional services rendered, without objection within a reasonable time, gives rise to an
actionable account stated, thereby entitling the plaintiff to summary judgment in its favor (id. at
185).
Defendant retained and did not object to the invoice, which was sent on November 29,
2022, until the middle of May 2023 (see NYSCEF Doc. No. 56). Waiting nearly six months is
simply too long and supports a finding that plaintiff is entitled to summary judgment on its
account stated claim (Spectra Audio Research, Inc. v 60-86 Madison Ave. Dist. Mgt. Assn., Inc.,
267 AD2d 23, 24, 699 NYS2d 360 [1st Dept 1999] [awarding summary judgment where a
defendant retained bills without objection for five months).
The email communications show that plaintiff inquired about payments in February and
April 2023 only for defendant to suddenly, in mid-May, raise questions about the delivery. As
plaintiff aptly responded in an email after defendant started to complain, “Good to bring it up 6
months later when we send you an A/R report every 2 weeks” (NYSCEF Doc. No. 56). That is
654919/2023 RE-STEEL DISTRIBUTION COMPANY, INC. vs. NEW MAJOR BUILDING SUPPLY, Page 3 of 5 LLC Motion No. 002
3 of 5 [* 3] FILED: NEW YORK COUNTY CLERK 02/26/2026 04:37 PM INDEX NO. 654919/2023 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 02/26/2026
the exact purpose of an account stated cause of action—to discourage a recipient of goods or
services from raising objections about an invoice long after the invoice is issued. Such a delay
makes it exceedingly difficult to look into issues raised—here, for instance, the parties suggested
they might need to look for surveillance video.
While defendant’s contention that it never signed the bill of lading raised an issue of fact
for plaintiff’s first cause of action for breach of contract, it does not state a material issue of fact
for the account stated claim. Defendant had more than enough time to raise an objection and did
not.
The Court also dismisses defendant’s counterclaim for a frivolous cause of action.
Clearly, because plaintiff has prevailed, its claim is not frivolous. Even if plaintiff had not
succeeded, this counterclaim would be dismissed. Plaintiff demonstrated that it created an
invoice, that it contracted out to deliver goods and that the relevant GPS tracking information
showed a truck at defendant’s place of business on the date and time in question (NYSCEF Doc.
No. 48). While that is not definitive proof that the rebar was delivered, it is absolutely enough
evidence to show this case was not frivolous.
The Court denies the branch of defendant’s motion that seeks to dismiss for lack of
personal jurisdiction. CPLR 3211(e) clearly provides that this type of motion to dismiss has to be
brought “within sixty days after serving the pleading.” For some unexplained reason, defendant
waited years after filing its answer (the answer was filed on November 14, 2023) to raise a lack
of proper service. Defendant obviously waived this objection years ago.
To the extent that plaintiff demands legal fees, that request is denied as it did not cite any
basis for that relief.
Accordingly, it is hereby
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ORDERED that plaintiff’s motion is granted on its account stated cause of action and the
Clerk is directed to enter judgment in favor of plaintiff and against defendant in the amount of
$25,381.20 plus statutory interest from November 29, 2022; and it is further
ORDERED that defendant’s counterclaim is severed and dismissed; and it is further
ORDERED that defendant’s cross-motion is denied in its entirety.
2/26/2026 $SIG$ DATE ARLENE P. BLUTH, J.S.C. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
□ GRANTED DENIED GRANTED IN PART X OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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