Opinion
13342 Index No. 651437/18 Case No. 2020-01985
03-16-2021
LEPATNER PROJECT SOLUTIONS LLC, also known as LPS, et al., Plaintiffs–Appellants, v. 320 WEST 115 STREET, LLC, also known as 320 West 115 Realty LLC, etc., et al., Defendants–Respondents.
Webber Law Group LLP, Melville (Jason A. Stern of counsel), for appellants. The Law Office of Thomas M. Mullaney, New York (Thomas M. Mullaney of counsel), for respondents.
Webber Law Group LLP, Melville (Jason A. Stern of counsel), for appellants.
The Law Office of Thomas M. Mullaney, New York (Thomas M. Mullaney of counsel), for respondents.
Renwick, J.P., Kapnick, Oing, Moulton, JJ.
Order, Supreme Court, New York County (Louis L. Nock, J.), entered March 7, 2019, which denied plaintiffs’ motion for partial summary judgment on their account stated claim, unanimously modified, on the law, the motion granted on their account stated claim against the LLC defendant for project management invoices from May 19, 2017 through December 6, 2017, and otherwise affirmed, without costs.
"[E]ither retention of bills without objection or partial payment may give rise to an account stated" ( Morrison Cohen Singer & Weinstein, LLP v. Waters, 13 A.D.3d 51, 52, 786 N.Y.S.2d 155 [1st Dept. 2004] ). Here, plaintiff LePatner Project Solutions, LLC is entitled to summary judgment on its account stated claim against the limited liability corporation defendant only for project management invoices from May 19, 2017 through December 6, 2017, as defendants never timely objected to such invoices. Defendants’ vague assertion that they "raised" the issue with plaintiffs is insufficient to create an issue of fact ( Kucker & Bruh, LLP v. Sendowski, 136 A.D.3d 475, 476, 24 N.Y.S.3d 507 [1st Dept. 2016] ; Zanani v. Schvimmer, 50 A.D.3d 445, 446, 856 N.Y.S.2d 65 [1st Dept. 2008] ).
While defendants also failed to timely object to plaintiffs’ legal services invoices rendered throughout 2017, defendants’ counterclaim for legal malpractice "is intertwined with ... plaintiff law firm's claim for legal fees," precluding summary judgment on the claim with regard to the invoices for legal services ( Emery Celli Brinckerhoff & Abady, LLP v. Rose, 111 A.D.3d 453, 454, 974 N.Y.S.2d 422 [1st Dept. 2013], lv denied 23 N.Y.3d 904, 2014 WL 2580086 [2014] ). Plaintiffs also are not entitled to summary judgment on their account stated claim insofar as it seeks payment of the December 19, 2017 additional services invoice, to which defendants timely objected on January 15, 2018 (see Healthcare Capital Mgt. v. Abrahams, 300 A.D.2d 108, 751 N.Y.S.2d 460 [1st Dept. 2002] ). Plaintiffs failed to establish their entitlement to summary judgment against the individual defendants.