Fensterstock & Partners, LLP v Shapiro
Annotate this CaseDecided on March 14, 2005
Supreme Court, New York County
Fensterstock & Partners, LLP, Plaintiff,
against
Steven B. Shapiro, Defendant.
111446/03
Louis B. York, J.
Introduction
This case is a textbook example of the trouble litigants can cause themselves when lawyer and client fail to execute a retainer agreement - even, as in this instance - both lawyer and client are attorneys.
Plaintiff law firm is suing for unpaid attorney's fees and disbursements of $225,734. Plaintiff sued for an account stated, breach of contract and quantum meruit. Defendant has asserted a number of counterclaims, all of which have been dismissed, except for the claim of professional malpractice. For the reasons that follow, the Court denies this motion for summary judgment.
Facts
Plaintiff was hired by the defendant to assist him in defending a claim by the relatives of an adjudicated incapacitated person pursuant to Article 81 of the Mental Hygiene Law. Defendant, the Guardian of the Person and Property of the Incapacitated Person, along with other court appointees were charged with misconduct. The petitioners in that proceeding sought to get plaintiff to disgorge the fees that he had been awarded by the Court.
Defendant alleges that he met with plaintiff and after explaining that he could afford to spend up to $75,000 in legal fees, the plaintiff law firm, in the person of its principal Blair C. Fensterstock, agreed to that figure. Defendant also maintains that they did not discuss the fees and charges for work as it was performed, but would negotiate the fee. Fensterstock categorically denies that such an agreement was made. Rather, he stated that the $75,000 would be paid immediately and the firm's customary hourly fees would be charged against it until it was exhausted, at the same time monthly bills would be sent to the defendant showing the amounts that he owed. Along the way, charges were proffered against the defendant with the Appellate Division Disciplinary Committee, and defendant's umbrella insurance company disclaimed coverage. Plaintiff began to represent defendant on both, although defendant claims that he never requested such representation. Plaintiff asserts quite the opposite.
Plaintiff's motion for summary judgment is based on its first cause of action for an account stated. Plaintiff sent 17 bills to defendant and 19 reminder notices. The $225,734 [*2]was never paid, although defendant never objected to the charges.
Defendant disputes that he never objected to the bills sent to him by plaintiff. Even before he received a bill, defendant states that he complained to Blair Fensterstock about the size of the bill, and the excessive number of people working on his case. On May 2, 2001 he received a bill for $138,489.02 for the one-month period April 1 through April 30, which he complained about to Blair Fensterstock. On January 11, 2002, at a meeting with Mr. Ferb, one of Fensterstock's associates, defendant again objected to the size of the fees. Shapiro states that upon the payment of the $75,000 on April 5, 2001, he was presented with a bill for work done from March 18, 2001 through March 30 in the sum of $94,680.70. He asserts that when he complained about that, Fensterstock told him not to be concerned. On the first day, even before defendant was notified that Fensterstock was agreeing to be retained, plaintiff billed for 52 hours. Defendant points out that over 90 hours were billed during the first two days, before plaintiff had even received the pertinent documents on the case.
Opinion
In deciding this matter, the Court notes that over $300,000 was billed in a case in which $170,000 was in issue. The Court also notes that plaintiff was largely successful in that he only had to pay back approximately $57,000, although he disputes that he even owed that amount, an issue not pertinent here but germane to his malpractice counterclaim.
One who retains bills for services without objection establishes an account stated claim (Ehrlich v Tullo, 274 AD2d 303, 710 NYS2d 572 [2000]). In order to defeat a cause of action for an account stated, a person must object within a reasonable time (Alter v Consella, 284 AD2d 138, 726 NYS2d [1st Dept 2001]). Conclusory oral statements without stating whom and when and the substance of the conversation one spoke to are insufficient to defeat summary judgment (Levinson v Gottlieb, 309 AD2d 668, 765 NYS2d 873 [1st Dept 2003]; Shea and Gould v Burr, 194 AD2d 369 [1st Dept 1993]). But where, as here, there is an objection with some specificity about to whom and when defendant indicated his objection, that is sufficient to defeat summary judgment. As the Court previously noted, its concern about the sizeable amount of the claim for summary which in this case is nearly double the size of the amount of money sought to be saved, is a concern that militates against awarding summary judgment also Id. The Court has considered plaintiff's other arguments and finds them to be without merit. Nothing in this Order should be construed as a binding decision on defendant's liability to plaintiff. This motion was decided on disputed facts which may turn out to be quite different at trial. The Court also notes that even if, as defendant contends, the plaintiff does not prevail on its account-stated claim, the causes of action for quantum meruit and breach of contract remain very much in play. Accordingly, it is
Order
ORDERED and ADJUDGED that plaintiff's motion for summary judgment is denied. [*3]
Dated: March 14, 2005
_______________________
Louis B. York, J.S.C.
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