Cohen Tauber Spievak & Wagner, LLP v Alnwick

Cohen Tauber Spievak & Wagner, LLP v Alnwick 2006 NY Slip Op 07812 [33 AD3d 562] October 31, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2006

Cohen Tauber Spievak & Wagner, LLP, Respondent,
v
Jeffrey Alnwick et al., Appellants.

—[*1]

Judgment, Supreme Court, New York County (Harold B. Beeler, J.), entered September 22, 2005, awarding plaintiff the principal sum of $210,036.28 while severing and dismissing defendants' counterclaims for the period prior to September 15, 2003; and order, same court and Justice, entered April 18, 2006, which, to the extent appealable, denied defendants' motion to renew, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered September 6, 2005, which, inter alia, granted plaintiff's motion for partial summary judgment, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff demonstrated entitlement to summary judgment on its claim for an account stated, and defendants failed to establish the existence of admissible evidence that would raise genuine issues of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Defendants received plaintiff's invoices from 2000 through September 15, 2003 without objection, and made partial payments thereon (see Shea & Gould v Burr, 194 AD2d 369 [1993]). Their "bald conclusory allegations of fraud, mistake and other equitable considerations are insufficient to defeat a motion for summary judgment" on an account stated (Liddle, O'Connor, Finkelstein & Robinson v Koppelman, 215 AD2d 204 [1995]). Furthermore, it is "not necessary to establish the reasonableness of the fee since the client's act of holding the statement without objection will be construed as acquiescence as to its correctness" (O'Connell & Aronowitz v Gullo, 229 AD2d 637, 638 [1996], lv denied 89 NY2d 803 [1996]).

Renewal was properly denied because defendants failed to allege new facts or explain why the documents upon which their claims were based had not been included in the prior [*2]motion. We have considered defendants' remaining arguments and find them without merit. Concur—Tom, J.P., Andrias, Marlow, McGuire and Malone, JJ.