Opinion
12909 12909A Index No. 159060/18 Case No. 2019-03670
01-19-2021
The LAW OFFICE OF MARK S. HELWEIL et al., Plaintiff-Respondents, v. Andrea KARAMBELAS, Defendant-Appellant.
Michael P. Lagnado, New York, for appellant. Rottenberg Lipman Rich, P.C., New York (Harry W. Lipman of counsel), for respondents.
Michael P. Lagnado, New York, for appellant.
Rottenberg Lipman Rich, P.C., New York (Harry W. Lipman of counsel), for respondents.
Gische, J.P., Oing, Moulton, Mendez, JJ.
Judgment, Supreme Court, New York County (Joel M. Cohen, J.), entered August 23, 2019, in favor of plaintiffs on the claim for account stated in the principal amount of $644,947.21, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered August 1, 2019, which granted plaintiffs summary judgment, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Plaintiffs made a prima facie showing of entitlement to judgment on the basis of an account stated. Defendant client's signed retainer agreement, payment of a $35,000 retainer, agreement to pay an hourly rate of $600 for legal services, agreement to pay all bills for legal fees, costs, and disbursements immediately upon receipt, as well as four partial payments toward the bills, constituted an acknowledgment of amounts owed and her assent (see Morrison Cohen Singer & Weinstein v. Ackerman, 280 A.D.2d 355, 356, 720 N.Y.S.2d 486 [1st Dept. 2001] ). Defendant's failure to lodge a timely, specific objection to the billing was insufficient to rebut any inference of an agreement to pay the stated amount (see Shaw v. Silver, 95 A.D.3d 416, 943 N.Y.S.2d 89 [1st Dept. 2012] ). Moreover, evidence in the form of detailed monthly invoices addressed to defendant, together with affidavits indicating that the invoices were regularly and timely forwarded to and received by defendant, established plaintiffs' compliance with the retainer agreement's regular billing requirements (see Berkman Bottger & Rodd, LLP v. Moriarty, 58 A.D.3d 539, 539, 871 N.Y.S.2d 135 [1st Dept. 2009] ).
Defendant's objections raised after the commencement of this action were untimely and insufficient (see Whiteman, Osterman & Hanna, LLP v. Oppitz, 105 A.D.3d 1162, 1163–1164, 963 N.Y.S.2d 432 [3d Dept. 2013] ; see also L.E.K. Consulting LLC v. Menlo Capital Group, LLC, 148 A.D.3d 527, 528, 52 N.Y.S.3d 1 [1st Dept. 2017] ). Further, defendant's reliance on her eighth affirmative defense to raise issues of fact concerning the account stated claim is unavailing. Those allegations are insufficient to rebut the prima facie showing of an account stated (see Abyssinian Dev. Corp. v. Bistricer, 133 A.D.3d 435, 436, 18 N.Y.S.3d 847 [1st Dept. 2015] ). Defendant's failure to consolidate her legal malpractice action, which she commenced subsequent to this legal fees action, precludes review of whether her claim is sufficiently intertwined with the account stated cause of action (see Emery Celli Brinckerhoff & Abady, LLP v. Rose, 111 A.D.3d 453, 454, 974 N.Y.S.2d 422 [1st Dept. 2013] ).