Michael B. Shulman & Assocs. v. Canzona

2022 NY Slip Op 00174

Michael B. Shulman & Associates, P.C., appellant, v. Christopher Canzona, Respondent.

Index No. 61950/14

No. 2017-10683

Supreme Court of New York, Second Department

January 12, 2022

Argued - September 30, 2021

D67719 Q/afa

Abrams Garfinkel Margolis Bergson, LLP, New York, NY (Robert J Bergson and Andrew Gefell of counsel), for appellant.

Andrew Lavoott Bluestone, New York, NY, for respondent.

REINALDO E. RIVERA, J.P ROBERT J. MILLER LARA J. GENOVESI WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action to recover unpaid legal fees, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Martha L Luft, J.), dated August 24, 2017. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment on the second cause of action and dismissing the defendant's counterclaims and fourth and fifth affirmative defenses.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the plaintiff's motion which was for summary judgment on the second cause of action, and substituting therefor a provision denying that branch of the motion insofar as it relates to the invoices dated August 2, 2013, and March 10, 2014, and granting that branch of the motion with respect to the remaining invoices as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

On March 24, 2014, the plaintiff commenced this action to recover approximately $116, 600 of unpaid legal fees allegedly earned for work performed on behalf of the defendant. The plaintiff moved for summary judgment on the second cause of action, which was to recover fees on an account stated, and dismissing the defendant's affirmative defenses and counterclaims. The Supreme Court, in effect, granted those branches of the plaintiff's motion which were for summary judgment dismissing the first, second, third, sixth, seventh, eighth, ninth, and tenth affirmative defenses, and otherwise denied the motion. The plaintiff appeals.

"'An account stated is an agreement between parties, based upon their prior transactions, with respect to the correctness of the account items and the specific balance due'" (Bank of Am., N.A. v Ball, 188 A.D.3d 974, 974, quoting Citibank [South Dakota], N.A. v Abraham, 138 A.D.3d 1053, 1056). "Although an account stated may be based on an express agreement between the parties as to the amount due, an agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account" (Citibank [South Dakota], N.A. v Abraham, 138 A.D.3d at 1056).

Here, the plaintiff established, prima facie, that, with the exception of the final invoice, dated March 10, 2014, the defendant received the invoices and made partial payments (see Stardom Brands, LLC v S.K.I. Wholesale Beer Corp., 172 A.D.3d 1266, 1268; Lavalle v Coholan Family, LLC, 167 A.D.3d 1444, 1444). As to the March 10, 2014 invoice, however, the record establishes that defendant promptly objected in writing and withheld payment.

In opposition, the defendant asserted that he made certain payments based only on the plaintiffs threats that work on the case would cease if he did not, corroborated by copies of written messages sent to the defendant by the plaintiff in September 2013. In addition, the...