Opinion
15441, 651456/13
06-16-2015
BOIES, SCHILLER & FLEXNER LLP, Plaintiff–Appellant, v. Shelby MODELL, Defendant–Respondent.
Boies, Schiller & Flexner LLP, New York (David Ata of counsel), for appellant. Davidoff Hutcher & Citron LLP, New York (Joshua Krakowsky of counsel), for respondent.
Boies, Schiller & Flexner LLP, New York (David Ata of counsel), for appellant.
Davidoff Hutcher & Citron LLP, New York (Joshua Krakowsky of counsel), for respondent.
ACOSTA, J.P., RENWICK, MOSKOWITZ, MANZANET–DANIELS, FEINMAN, JJ.
Opinion Order, Supreme Court, New York County (Anil C. Singh, J.), entered March 10, 2014, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment on its account stated claim and to dismiss defendant's counterclaim for breach of contract and her affirmative defenses, unanimously modified, on the law, to grant the motion for summary judgment on the account stated claim in the amount of $30,525, and to dismiss the breach of contract counterclaim, and otherwise affirmed, without costs.
Plaintiff established prima facie that it entered into a retainer agreement with defendant and sent her regular invoices pursuant thereto, and that, after plaintiff withdrew from representation, defendant paid more than $400,000 towards those bills, with a promise to pay the remainder in exchange for plaintiff's agreement to represent her a second time in the same or related matters (Morrison Cohen Singer & Weinstein, LLP v. Waters, 13 A.D.3d 51, 786 N.Y.S.2d 155 [1st Dept.2004] ; Levisohn, Lerner, Berger & Langsam v. Gottlieb, 309 A.D.2d 668, 765 N.Y.S.2d 873 [1st Dept.2003], lv. denied 1 N.Y.3d 509, 777 N.Y.S.2d 19, 808 N.E.2d 1278 [2004] ). Accordingly, plaintiff is entitled to summary judgment on its account stated claim for the outstanding amount of $30,525 for bills dated July 31, 2012, August 20, 2012, and September 20, 2012, in connection with the first representation.
However, as plaintiff withdrew and then agreed to represent defendant again, defendant's partial payments in connection with the first representation cannot be construed as consent to the amounts due in connection with the second representation. Accordingly, plaintiff is not entitled to summary judgment to the extent the account stated claim is based on work performed and invoiced for October 2012 through February 2013, i.e., during the second representation.
While the parties agree that defendant paid the October 2012 bill, purportedly for work performed in September 2012, the record does not conclusively establish the services billed for in that invoice, including whether the invoice related to the first or second representation. Coupled with defendant's objections to and refusal to pay any subsequent invoice, the payment of the October 2012 bill does not suffice to eliminate any triable issue of fact as to defendant's consent to the amounts due under later invoices.
Moreover, defendant averred that she called plaintiff within a day or two after receiving each invoice, spoke to the lawyer primarily handling her case and her assistant, and objected that she did not understand the charges, that they appeared to be unwarranted, and that she could not pay. This evidence of defendant's oral objections is sufficiently detailed to create a triable issue of fact as to her consent to the amounts due (compare Darby & Darby v. VSI Intl., 95 N.Y.2d 308, 315, 716 N.Y.S.2d 378, 739 N.E.2d 744 [2000] [“self-serving, bald allegations of oral protests” insufficient to raise issue of fact]; Zanani v. Schvimmer, 50 A.D.3d 445, 856 N.Y.S.2d 65 [1st Dept.2008] [assertion of oral objection to bills insufficient because the defendant failed to state when objection was made or specific substance thereof] ).
As plaintiff correctly notes, numerous emails cited in an affidavit by defendant's daughter (who exercised a power of attorney on defendant's behalf) and relied upon by the motion court, when read in context, fail to raise any specific, timely objections to any bills. However, defendant's oral objections are supported by at least two emails to plaintiff from defendant's daughter, advising plaintiff on December 31, 2012, that she intended to go over the “outlandish bills” with her accountant, and on January 25, 2013, that she would not pay any bills until they were reviewed by the accountant (see RPI Professional Alternatives, Inc. v. Citigroup Global Mkts. Inc., 61 A.D.3d 618, 878 N.Y.S.2d 36 [1st Dept.2009] ; see also Herrick, Feinstein v. Stamm, 297 A.D.2d 477, 479, 746 N.Y.S.2d 712 [1st Dept.2002] ).
The breach of contract counterclaim should be dismissed since defendant fails to identify any provision of the retainer agreement that promises to produce a particular result, rather than setting forth general professional standards (see Boslow Family Ltd. Partnership v. Kaplan & Kaplan, PLLC, 52 A.D.3d 417, 860 N.Y.S.2d 526 [1st Dept.2008], lv. denied 11 N.Y.3d 707, 868 N.Y.S.2d 599, 897 N.E.2d 1083 [2008] ; Sarasota, Inc. v. Kurzman & Eisenberg, LLP, 28 A.D.3d 237, 814 N.Y.S.2d 94 [1st Dept.2006] ).The motion court correctly declined to dismiss the affirmative defenses at this point in the litigation since they are supported by more than bare legal conclusions (see Robbins v. Growney, 229 A.D.2d 356, 358, 645 N.Y.S.2d 791 [1st Dept.1996] ).