Scheichet & Davis, P.C. v Nohavicka

Scheichet & Davis, P.C. v Nohavicka 2012 NY Slip Op 01763 Decided on March 13, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 13, 2012
Saxe, J.P., Sweeny, Freedman, Manzanet-Daniels, JJ. 7059-
114359/10 7060

[*1]Scheichet & Davis, P.C., Plaintiff-Respondent,

v

Kenneth Nohavicka, as Executor of the Estate of Michael J. Endico, Sr., etc., Defendant-Appellant.




Clement S. Patti, Jr., White Plains, for appellant.
Scheichet & Davis, P.C., New York (Harry J. Petchesky of
counsel), for respondent.

Judgment, Supreme Court, New York County (Charles E. Ramos, J.), entered May 20, 2011, awarding plaintiff law firm the principal sum of $167,419.83 pursuant to an order, same court and Justice, entered May 11, 2011, which granted plaintiff's cross motion for summary judgment on its cause of action for an account stated and denied defendant's motion to dismiss the complaint, unanimously affirmed, without costs. Appeal from aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff established entitlement to summary judgment on its claim for an account stated by showing that its client "received, retained without objection, and partially paid invoices without protest" (Gamiel v Curtis & Reiss-Curtis, P.C., 60 AD3d 473, 474 [2009], lv dismissed 13 NY3d 763 [2009]). Defendant's conclusory allegations of protests fail to raise a triable issue of fact as to the existence of an account stated (see Darby & Darby v VSI Intl., 95 NY2d 308, 315 [2000]; Kramer Levin Naftalis & Frankel LLP v Canal Jean Co., Inc., 73 AD3d 604 [2010]).

The court properly determined that a prior order fixing the amount of plaintiff's charging lien on the proceeds of the settlement of the underlying lawsuit was not res judicata as to [*2]plaintiff's account stated claim (see generally O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]). Plaintiff did not have an opportunity to litigate its account stated claim when the court awarded the charging lien.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 13, 2012

CLERK