holding that “[t]here can be no account stated where no account was presented or where any dispute about the account is shown to have existed.”
How later courts described this case
- holding that “[t]here can be no account stated where no account was presented or where any dispute about the account is shown to have existed.”
Written by the judges who cited it.
The opinion
Hassan Gen. Contr. Corp. v 224-30 Eighth Ave LLC
2026 NY Slip Op 30765(U)
March 4, 2026
Supreme Court, New York County
Docket Number: Index No. 155910/2025
Judge: Lyle E. Frank
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.1559102025.NEW_YORK.001.LBLX000_TO.html[03/12/2026 3:45:51 PM]
FILED: NEW YORK COUNTY CLERK 03/05/2026 11:59 AM INDEX NO. 155910/2025
NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 03/04/2026
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. LYLE E. FRANK PART 11M
Justice
---------------------------------------------------------------------------------X INDEX NO. 155910/2025
HASSAN GENERAL CONTRACTING CORP.,
02/03/2026,
Plaintiff, MOTION DATE 02/03/2026
-v- MOTION SEQ. NO. 005 006
224 - 30 EIGHTH AVE LLC,SABET DEVELOPMENT
COMPANY, INC.,LEOR SABET, 312 W 21 STREET
LLC,CITI REAL ESTATE FUNDING INC.,JOHN DOE #1 TO
JOHN DOE #10, SAID JOHN DOE DEFENDANTS BEING
FICTITIOUS, IT BEING INTENDED TO NAME ALL OTHER DECISION + ORDER ON
PARTIES WHO MAY HAVE LIENS FILED OR CLAIMS MOTION
AGAINST THE REAL PROPERTY SOUGHT TO BE
FORECLOSED
Defendant.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 005) 123, 124, 125, 126,
127, 128, 129, 130, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156
were read on this motion to/for DISMISS DEFENSE .
The following e-filed documents, listed by NYSCEF document number (Motion 006) 131, 132, 133, 134,
135, 136, 137, 138, 139, 157, 158, 159, 160, 161, 162, 163
were read on this motion to/for JUDGMENT - SUMMARY .
Upon the foregoing documents, motion 005 is denied and motion 006 is denied.
Background
These motions arise out of a dispute over the payment of a contractor. Defendants are the
owners of two buildings and other individuals and entities interested in the buildings. Plaintiff is
a construction company that was hired in December of 2022 to perform certain improvements to
the 8th Avenue building and again in November of 2023 to perform scaffolding and other repair
work on the 21st Street building. According to Plaintiff, the work on the 8th Avenue building
was fully performed and completed on March 13, 2025, and they performed fully under the
agreement for the 21st Street building, but they have not been fully paid for either project.
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Motion No. 005 006
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Plaintiff also alleges to have sent invoices to Defendants that were accepted but remain
unpaid. This underlying proceeding was brought in May of 2023, with Plaintiff pleading claims
for breach of contract, quasi-contract, account stated, and mechanic’s lien foreclosure.
Defendants 224-30 Eight Ave LLC, Sabet Development Company, Inc., Leor Sabet, and 321 W
21 Street LLC (collectively, the “Owner Defendants”) answered on June 17, 2025. The answer
pleads five affirmative defenses and three counterclaims.
Discussion
In motion sequence 005, Plaintiff moves to dismiss the affirmative defenses and
counterclaims pled in the Owner Defendant’s answer. In motion sequence 006, Plaintiff moves
for partial summary judgment on their account stated claim. Owner Defendants oppose both
motions. For the reasons that follow, both motions are denied.
Owner Defendants Have Adequately Pled Affirmative Defenses and Counterclaims
Plaintiff moves to dismiss the affirmative defenses and counterclaims on the grounds that
they are conclusory and lacking in factual allegations. The general rule is that bare legal
conclusions are insufficient to validly plead an affirmative defense. See, e.g., Robbins v.
Growney, 229 A.D.2d 356, 358 [1st Dept. 1996]. For a CPLR § 3211(b) motion to dismiss
affirmative defenses, the plaintiff bears the burden of demonstrating a lack of merit and the
“defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to
be liberally construed.” 534 E. 11th St. Hous. Dev. Fund Corp. v. Hendrick, 90 A.D.3d 541, 541
[1st Dept. 2011]. Furthermore, factual allegations in the body of the answer suffice to give notice
as to the theory behind the defenses. Id., at 542.
Here, the Court finds that the affirmative defenses are sufficiently pled. For instance, the
answer denies the allegation that the invoices at issue were received and the first affirmative
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defense states that “Defendant [sic] have paid Plaintiff anything and everything to which
Plaintiff was entitled.” Other affirmative defenses allege that Plaintiff willfully exaggerated the
amounts claimed under the lien, and that no consent was given by the Owner Defendants that
would permit a lien to be placed on the property. While not overly detailed, the affirmative
defenses and counterclaims in the answer are sufficiently pled.
Plaintiff Has Not Established Prima Facie Entitlement to Summary Judgment on the Account
Stated Claim
Plaintiff also moves for summary judgment on the account stated claims in the fourth and
eighth causes of action. These claims allege that Plaintiff had sent the Owner Defendants
invoices related to work performed on both properties and that these invoices were retained
without dispute. Under CPLR § 3212, a party may move for summary judgment and the motion
“shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall
be established sufficiently to warrant the court as a matter of law in directing judgment in favor
of any party.” CPLR § 3212(b). Once the movant makes a showing of a prima facie entitlement
to judgment as a matter of law, the burden then shifts to the opponent to “produce evidentiary
proof in admissible form sufficient to establish the existence of material issues of fact which
require a trial of the action.” Stonehill Capital Mgt. LLC v. Bank of the W., 28 N.Y.3d 439, 448
[2016]. The facts must be viewed in the light most favorable to the non-moving party, but
conclusory statements are insufficient to defeat summary judgment. Id.
The basis for an account stated claim can be either partial payment or a retention of bills
without objection. Jaffe v. Brown-Jaffe, 98 A.D.3d 898, 899 [1st Dept. 2012]; see also Bartning
v. Bartning, 16 A.D.3d 249, 250 [1st Dept. 2005] (holding that a claim for account stated “exists
where a party to a contract receives bills or invoices and does not protest within a reasonable
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time.”). Here, Plaintiff has submitted an attorney affirmation and copies of the verified complaint
and answer in support of their motion. They also submitted copies of invoices that had been
attached as exhibits to the complaint. In opposition, the Owner Defendants argue that a failure to
attach an affirmation from a person with knowledge defeats the motion. They also submit an
affidavit from principal Leor Sabetfard stating that one of the invoices in question was never
received, that the other invoices do not reflect the parties’ discussions, and that he had protested
the quality of work performed. The Owner Defendants also allege that there was no contract for
the work at issue.
To the extent that Plaintiff argues that Mr. Sabetfard lied in his affidavit, such an
allegation would require the Court to make a credibility determination that would be
inappropriate at this juncture. See, e.g., Wachtel v. Alan Joel Communications, Inc., 241 A.D.3d
1139, 1140 [1st Dept. 2025] (holding that conflicting accounts preclude summary judgment
because “it is not a court’s function on a motion for summary judgment to assess credibility”).
Because here there conflicting allegations regarding whether the invoices in question were
received and whether the amounts charged were objected to, it would be premature to grant
summary judgment on the account stated claim. See, e.g., Abbott, Duncan & Wiener v. Ragusa,
214 A.D.2d 412, 413 [1st Dept. 1995] (holding that “[t]here can be no account stated where no
account was presented or where any dispute about the account is shown to have existed.”).
Accordingly, it is hereby
ADJUDGED that the motions are denied.
3/4/2026
DATE LYLE E. FRANK, J.S.C.
CHECK ONE:
B CASE DISPOSED
GRANTED
□
X DENIED
B
X NON-FINAL DISPOSITION
GRANTED IN PART
□
OTHER
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Motion No. 005 006
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FILED: NEW YORK COUNTY CLERK 03/05/2026 11:59 AM INDEX NO. 155910/2025
NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 03/04/2026
APPLICATION:
CHECK IF APPROPRIATE:
B SETTLE ORDER
-
INCLUDES TRANSFER/REASSIGN
B SUBMIT ORDER
FIDUCIARY APPOINTMENT
□
REFERENCE
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Motion No. 005 006
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