Shaw v Silver

Shaw v Silver 2012 NY Slip Op 03375 Decided on May 1, 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 May 1, 2012
Mazzarelli, J.P., Acosta, Renwick, Richter, JJ. 7512-
7513 105845/06

[*1]Stuart F. Shaw, etc., Plaintiff-Respondent,

v

Joel J. Silver et al., Defendants-Appellants, Heritage Partners, LLC, et al., Defendants.




Schrader & Schoenberg, LLP, New York (David A. Schrader
of counsel), for appellants.
Shaw & Blinder P.C., New York (Stuart F. Shaw of counsel),
for respondent.

Judgment, Supreme Court, New York County (Saliann Scarpulla, J.), entered March 24, 2011, awarding plaintiff the amounts of $230,273.53 as against Joel J. Silver, Ethan Eldon, and other defendants who are not parties to this appeal, $115,743.85 as against Mr. Silver, and $370,038.58 as against Mr. Silver and Esther Silver, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered on or about March 22, 2011, which found in plaintiff's favor after a nonjury trial, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff's bills were sufficient to create an account stated (see e.g. Zanani v Schvimmer, 50 AD3d 445, 446 [2008]). The account stated was not impeached by an error that was rectified at trial (see O'Connell & Aronowitz v Gullo, 229 AD2d 637, 639 [1996], lv denied 89 NY2d 803 [1996]; see also Geron v DeSantis, 89 AD3d 603, 604 [2011]).

"[W]here an account is rendered showing a balance, the party receiving it must, within a reasonable time, examine it and object, if he disputes its correctness. If he omits to do so, he will be deemed by his silence to have acquiesced, and will be bound by it as an account stated, unless fraud, mistake or other equitable considerations are shown" (Peterson v Schroder Bank & Trust Co., 172 AD2d 165, 166 [1991] [internal quotation marks and citations omitted]; see also Rosenman Colin Freund Lewis & Cohen v Neuman, 93 AD2d 745, 746 [1983]). Defendants-appellants (hereinafter defendants) do not claim fraud or mistake. We find no equitable considerations that would prevent defendants' silence from being deemed acquiescence to plaintiff's bills. Furthermore, insofar as the bills for Beta v Eldon are concerned, there was not merely "retention of bills without objection" (Morrison Cohen Singer & Weinstein, LLP v Waters, 13 AD3d 51, 52 [2004]), there was also partial payment (see id.; see also e.g. Parker Chapin Flattau & Klimpl v Daelen Corp., 59 AD2d 375, 378 [1977]).

Defendants' contention that plaintiff's fees were unreasonable is unavailing; "it is not [*2]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" (Cohen Tauber Spievak & Wagner, LLP v Alnwick, 33 AD3d 562, 562-563 [2006] [internal quotation marks omitted], lv dismissed 8 NY3d 840 [2007]). Defendants' argument that plaintiff violated the Code of Professional Responsibility is "unpreserved and may not be raised for the first time on appeal" (Morse, Zelnick, Rose & Lander, LLP v Ronnybrook Farm Dairy, Inc., 92 AD3d 579, 580 [2012]).

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

ENTERED: MAY 1, 2012

CLERK