Plaintiff and defendant-appellant Edward Weiss entered into an attorney-client relationship in 1984. In 1987 their relationship ended with defendant allegedly owing plaintiff legal fees. In May of 1987, plaintiff sent defendant-appellant a one page statement of account indicating that he owed plaintiff a total of $44,414.30 for services rendered to him and defendant Promovision Video Displays Corporation between 1985 and 1987. Notwithstanding his receipt of this statement, defendant-appellant refused payment. Plaintiff thereafter commenced the within action seeking to recover fees for legal services rendered "in or about and prior to October of 1985." In his second cause of action, plaintiff alleges an entitlement to recover based upon his rendering and defendant's retention of the aforementioned statement of account. And, indeed, it was upon this account-stated theory that the motion court premised its grant of partial summary judgment to plaintiff, which determination, along with the ensuing judgment in plaintiff's favor, has now been placed before us on appeal. Also at issue is the propriety of the motion court's accompanying denial of the defendant-appellant's motion to dismiss the plaintiff's first four causes of action for failure to state a cause of action pursuant to CPLR 3211 (a) (7).

While we are of the view that the motion court properly denied the defendant-appellant's motion to dismiss, its grant of partial summary judgment to the plaintiff was plainly in error. We cannot agree with the motion court that the defendant-appellant's receipt and retention of the statement at issue was sufficient as a matter of law to signify an acknowledgement of the obligation to render payment. Recovery premised upon an account stated will fail where a dispute about the account can be shown to have existed (Waldman v Englishtown Sportswear, 92 A.D.2d 833, 836). Here, defendant-appellant did not merely retain the statements, but on at least two occasions expressly refused payment of the amounts billed; his refusals are sufficient, under the circumstances here obtaining, to raise a question of fact as to the existence of an underlying dispute as to what, if any, amounts were owed (see, Santora McKay v Mazzella, 182 A.D.2d 572). We note in this regard that the one page statement upon which plaintiff would premise his recovery appears to reflect a recent precipitous five-fold increase in the amount of plaintiff's monthly retainer and gives no indication as to which of the billed-for services were performed for defendant-appellant Weiss and which were performed for defendant Promovision. Certainly, defendant-appellant's repeated refusals to pay such a bill cannot be easily reconciled with the conclusion necessary to a recovery upon an account-stated theory, i.e., that the defendant had acknowledged the legitimacy of the debt. The existence of so pronounced a factual issue as to whether the obligation reflected in plaintiff's May 1987 statement was disputed ought to have precluded the grant of plaintiff's motion for summary judgment upon his second cause of action (see, Kriz v Schum, 75 N.Y.2d 25, 33; Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404; 175 Check Cashing Corp. v Chubb Pac. Indem. Group, 95 A.D.2d 701).

The judgment in the plaintiff's favor was additionally in error for directing the payment of amounts as to which no claim was asserted in the complaint. While the larger part of the $44,414.30 in past due legal fees included in the statement of account upon which the plaintiff's second cause of action is based, pertains to services rendered by the plaintiff since 1986, the complaint, as noted, purports to seek to recover only for professional services performed "in or about and prior to" October 1985. Plainly it was error to countenance the recovery of fees incurred subsequent to 1985 in the absence of any corresponding amendment of the complaint and opportunity by the defendant to answer and obtain additional discovery (see, Law Firm of Leibowitz, Lasky Peterson v Sikowitz, 129 A.D.2d 774, 775; Eats v Ellsworth, 156 A.D.2d 799, 800; CPLR 3025 [b], [c]; 3212 [f]).

Concur — Murphy, P.J., Kassal, Rubin and Nardelli, JJ.