The Importance of Attaching Invoices When Seeking Relief Based Upon Those Invoices

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Posted on: Feb 27 2023

The law reporters are brimming with cases in which a plaintiff seeks relief from a defendant for the failure to make a payment that is due and owing. The scenarios in which this fact pattern occurs are too many to recite here.

As the reader might expect, plaintiffs do not always retain the invoice or other similar writing. Nevertheless, they seek relief, claiming that alternative evidence, such as an email, suffices to demonstrate that the defendant owes the money. While such forms of evidence may ultimately prove to be dispositive, on a motion to dismiss, they often raise issues of fact rather than conclusively show that the money (in the amount sought) is owed. In Sky Virtue Ltd. V. Trend Direct Global LLC, 2023 N.Y. Slip Op. 30527(U) (Sup. Ct., N.Y. County Feb. 21, 2023) (here), Justice Arlene Bluth was faced with the foregoing scenario.

Plaintiff brought the action to recover under an account stated theory for goods sold and delivered to defendant.¹ Plaintiff claimed that defendant the placed orders, which was not in dispute, received the invoices and did not object to them, making defendant liable for the amount charged therein.

Plaintiff attached a series of emails in which its president informed defendant about the outstanding invoices. Plaintiff maintained that defendant did not timely object to the invoices and that, in fact, defendant made partial payments on some of the invoices.

Defendant claimed that there were a few issues related to the amount sought by plaintiff. Among other things, Defendant claimed that the amount sought by plaintiff was not readily apparent from the moving papers; it pointed out that the amounts included in the emails totaled less than the amount sought in the amended complaint. Defendant said that at least two of the invoices included goods that were never delivered to defendant.

Plaintiff moved for summary judgment. The motion court denied the motion.

The court found that plaintiff did not prove as a matter of law that it sent bills to defendant and that defendant failed to timely object to those invoices.² The court explained that plaintiff failed to “include the underlying invoices upon which this case [was] based,” opting instead to attach the email chain that cited to the invoices.³ The court said that the charts included in the emails were of no probative value, noting that “some of [those] charts [were] cut off and some contain[ed] columns written in Chinese characters.”⁴

[A]lthough the email chain upon which plaintiff relies suggests that there were outstanding invoices, the Court is unable make any determinations about when these invoices were sent, how much plaintiff seeks, or how defendant responded. For instance, the Court is unable to reconcile the amount plaintiff seeks where plaintiff failed to upload supporting documentation. Moreover, it appears that defendant uploaded certain invoices (although these do not appear to encompass all the invoices for which plaintiff seeks to recover).⁵

The court underscored the point that the party claiming an account stated must “clearly establish, with the requisite specificity, the invoices it claims [to have] sent to the defendant.”⁶ The court found that plaintiff failed to do so.⁷ Accordingly, the court denied the motion.

The court denied the motion for another reason: plaintiff failed to comply with CPLR § 2101(b), which requires that supporting documentation written in another language must be accompanied by a certified translation into English.⁸ The court reminded the parties that it “must be able to understand an entire document, not only the parts in English, in order to make a determination.”⁹ By failing to do so, plaintiff “failed to meet its burden.”¹⁰

Footnotes

“An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due. An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account.” Citibank (S. Dakota), N.A. v. Brown-Serulovic, 97 A.D.3d 522, 523 (2d Dept. 2012).
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Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.