“Under federal and New York law, an account stated ‘refers to a promise by a debtor to pay a stated sum of money which the parties had agreed upon as the amount due.’ ” National Econ. Research Assocs., Inc. v. Purolite “C” Corp., No. 08 Civ. 7600, 2011 U.S. Dist. LEXIS 24458, at *6 (S.D.N.Y. Mar. 10, 2011) (citations omitted); accord Lankler Siffert & Wohl, LLP v. Rossi, 287 F. Supp. 2d 398, 407 (S.D.N.Y. 2003); Ally & Gargano, Inc. v. Comprehensive Accounting Corp., 615 F. Supp. 426, 429 (S.D.N.Y. 1985).
In New York, “[t]o state a claim for an account stated, the plaintiff must plead that: ‘(1) an account was presented; (2) it was accepted as correct; and (3) debtor promised to pay the amount stated.’ ” National Econ. Research Assocs., Inc., 2011 U.S. Dist. LEXIS 24458, at *6 (citations omitted); accord IMG Fragrance Brands, LLC v. Houbigant, Inc., 679 F. Supp. 2d 395, 411 (S.D.N.Y. 2009).
“The second and third elements ‘may be implied if ‘a party receiving a statement of account keeps it without objecting to it within a reasonable time or if the debtor makes partial payment.’ ‘ ” National Econ. Research Assocs., Inc., 2011 U.S. Dist. LEXIS 24458, at *6 (citations omitted); accord IMG Fragrance Brands, LLC, 679 F. Supp. 2d at 411.
New York’s Appellate Division, Second Department has held that, for purposes of a cause of action for an account stated, a debtor’s failure to object to invoices for a period of five months is unreasonable. R.A. Associates v. Lerner, 245 A.D.2d 437, 666 N.Y.S.2d 665, 666 (2d Dep’t 1997); see also Shea & Gould v. Burr, 194 A.D.2d 369, 371, 598 N.Y.S.2d 261 (1st Dep’t 1993) (“The failure to object to the unitemized bill for a period of five months suffices to give rise to an account stated, especially in view of the partial payment made.”); Sieratzki v. Sei Global, Inc., No. 600183/09, 2009 WL 4009128 (N.Y. Sup. Ct. N.Y. County Nov. 10, 2009) (granting summary judgment for the plaintiff, a lawyer, in action for an account stated; holding that the defendant client’s delay of five months in objecting to plaintiff’s invoices was unreasonable).
“As to timing, ‘[a]n objection made for the first time upon commencement of proceedings will not suffice.’ ” National Econ. Research Assocs., Inc., 2011 U.S. Dist. LEXIS 24458, at *6 (citation omitted); see also O’Connell & Aronowitz v. Gullo, 229 A.D.2d 637, 644 N.Y.S.2d 870, 871-872 (3d Dep’t 1996) (affirming Supreme Court’s judgment, issued after a non-jury trial, in favor of the plaintiff, an attorney, for an account stated; holding that, because the defendant client did not object to the plaintiff’s statement of account until the plaintiff sued to recover legal fees, the client’s objection was insufficient).