New York Appellate Division, Second Dept.
Action to Recover HOA Maintenance Fees Based Upon Account Stated Fails:  HOA brought an action against Defendant to recover unpaid maintenance fees and moved for summary judgment based upon account stated (property is in Vermont).  HOA contended that Defendant had received maintenance invoices but had failed to object to them, thereby establishing an inference that Defendant assented to the charges.  Citibank [South Dakota], N.A. v Abraham, 138 AD3d at 1056; Citibank [S.D.], N.A. v Brown-Serulovic, 97 AD3d 522, 523; Landau v Weissman, 78 AD3d at 662; Yannelli, Zevin & Civardi v Sakol, 298 AD2d 579, 580; Legum v Ruthen, 211 AD2d 701, 703. The Supreme Court granted for plaintiff.  On appeal, the Second Department reversed.“'An account stated is 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'" (Volkening v DeGraaf, 81 NY 268, 270; see Gurney, Becker & Bourne, Inc. v Benderson Dev. Co., 47 NY2d 995, 996; Interman Indus. Prods. v R. S. M. Electron Power, 37 NY2d 151, 153; Caring Professionals, Inc. v Landa, 152 AD3d 738, 739). An essential element to an account stated cause of action is that the parties came to an agreement with respect to the amount of the balance due (see Newburger-Morris Co. v Talcott, 219 NY 505, 512; Volkening v DeGraaf, 81 NY at 270; Raytone Plumbing Specialities, Inc. v Sano Constr. Corp., 92 AD3d 855, 856; Landau v Weissman, 78 AD3d 661, 662).'"  Silence and failure to object alone cannot be construed as an agreement to the account or the amount due but that some circumstances may lead to a finding of an implied stated account.  Here though, there was no evidence that Defendant had received an invoice “which he retained for an unreasonable period of time without objection such that the only reasonable inference would be that he assented to the correctness of the account items and balance due”.  Styles Brook Homeowners' Assn. v Blasi, 2018 NY Slip Op 06960, Appellate Division, Second Department, October 17, 2018
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