Jones, Sledzik, Garneau & Nardone, LLP v DeFeo

[*1] Jones, Sledzik, Garneau & Nardone, LLP v DeFeo 2004 NY Slip Op 50744(U) Decided on July 1, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 1, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
PRESENT:McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
NO. 2003-1190 W C

JONES, SLEDZIK, GARNEAU & NARDONE, LLP., Respondent,

against

MARIE DeFEO, Appellant.

Appeal by defendant from a judgment of the Justice Court, Town of Eastchester, Westchester County (J. Connors, Jr., J.), entered June 5, 2003, in favor of plaintiff in the principal sum of $2,665 and dismissing the defendant's counterclaims pursuant to an order granting plaintiff's motion for summary judgment. The appeal brings up for review, pursuant to CPLR 5517 (b), an order of the same court, dated January 23, 2004, which denied defendant's motion for renewal.

Judgment unanimously modified by decreasing the award in favor of plaintiff to the principal sum of $2,315; as so modified, affirmed without costs.

Order denying defendant's motion for renewal unanimously affirmed without costs.

Plaintiff commenced the instant action to recover the balance owed for legal services rendered. Thereafter, plaintiff moved for summary judgment. Plaintiff's moving papers set forth a description of the issues involved in the litigation, the time and labor required, a detailed billing statement, the customary fee charged for similar services, and the experience and reputation of the two attorneys who rendered the services. Plaintiff met its burden of establishing the reasonableness of the attorney's fees which it sought to recover (see Sand v Lammers, 150 AD2d 355 [1989]) and its entitlement to judgment as a matter of law for all sums charged except one. We deduct the sum of $350 which represents plaintiff's charge for meeting with defendant to [*2]discuss plaintiff's bill.

After reviewing defendant's opposition papers, we are of the opinion that defendant failed to establish that a triable issue of fact exists.

With respect to defendant's counterclaims, we note that said causes of action were similarly interposed in a Supreme Court action which she commenced against the
plaintiff law firm. The law firm's motion for summary judgment dismissing the Supreme
Court action was granted on the ground that the causes of action were not pled with
specificity and/or lacked merit. The lower court in the case at bar, relying on the Supreme Court order and noting that the issues presented were identical, similarly dismissed the counterclaims herein on the grounds that they were not pled with specificity and/or lacked merit (see CPLR 3016 [b]; Ferdinand v Crecca & Blair, 5 AD3d 538 [2004]; P.T. Bank Cent. Asia, N.Y. Branch v ABN AMRO Bank N.V., 301 AD2d 373, 376 [2003]) and/or failed to state a cognizable claim (see William Kaufman Org. v Graham & James, 269 AD2d 171 [2000]). We find no basis to disturb said determination. Therefore, the judgment should be modified by reducing the amount awarded to plaintiff to the principal sum of $2,315.

Turning to defendant's motion to renew, inasmuch as the defendant provided facts which she should have known at the time plaintiff moved for summary judgment
and did not offer a valid excuse as to why she did not present these facts at the time of the original motion (see Matter of Quinones v Selsky, 297 AD2d 864 [2002], lv
dismissed in part and denied in part 99 NY2d 595 [2003]; Matter of Chartier [Cameo House Owners], 254 AD2d 14 [1998]; see also Natale v Jeffrey Samel & Assocs., 264 AD2d 384 [1999]), the lower court properly denied said motion.
Decision Date: July 01, 2004