Karasik & Assoc., LLC v Milton's Residential & Indus. Incinerator Mft., Inc.
Annotate this CaseDecided on September 29, 2006
Supreme Court, New York County
Karasik & Associates, LLC, Plaintiff,
against
Milton's Residential & Industrial Incinerator Mft., Inc. and Berris M. Anderson, Defendants.
600167/06
Michael D. Stallman, J.
Upon the foregoing papers, it is ordered that plaintiff's motion for summary judgment is denied.
In this action, plaintiff Karasik & Associates, LLC seek to recover unpaid legal fees for services allegedly rendered on behalf of defendant Milton Residential Industrial Incinerators MFT, Inc. (MRI), to research and draft a prospectus. Plaintiff's representation was terminated before the prospectus was completed.
The complaint alleges that about $34,000 remains unpaid, and that the corporate defendant is a sham and the alter ego of defendant Berris M. Anderson.Although not specifically mentioned in the complaint, plaintiff proceeds under a theory of an account stated on this motion, citing Nolan & Heller v Weis, 59 AD2d 810, 810 (3d Dept 1977).
In support of its motion, plaintiff submits a copy of a retainer agreement, invoices for services, the pleadings, and a letter informing defendants of the right to arbitrate a fee dispute. According to plaintiff, at no time did defendant ever question any charges appearing on the invoices or any of the work described therein, which were mailed to plaintiff on December 9, 2005 (Karasik Affirm. ¶ 6). Thus, plaintiff establishes a prima facie case of an account stated against MRI (see Morrison Cohen Singer and Weinstein, LLP v Waters, 13 AD3d 51, 52 (1st Dept 2004). [*2]
However, defendants raise an issue of fact as to whether they timely objected to the invoices. "Evidence of an oral objection to an account rendered is sufficient on a motion for summary judgment to rebut any inference of an implied agreement to pay the stated amount" (Sandvoss v Dunkelberger, 112 AD2d 278, 279 [2d Dept 1985]). Anderson claims that, upon receipt of each and every bill, he
would call plaintiff and personally speak with Mr. Karasik, to discuss objections and questions he had regarding each bill (Anderson Aff. ¶ 4). According to Anderson, Karasik instructed him to make notations on each of the billing statements indicating which services which he disputed. Defendants include copies of each bill with notations regarding his questions (Anderson, Ex B). Anderson also claims that, once plaintiff completed its work in preparing a prospectus for MRI, the parties would discuss those disputed items (Anderson Aff. ¶ 4)
Plaintiff's denial of the alleged conversations instructing Anderson to make notations only underscore that there are disputed issues of fact that warrant denial of summary judgment. Whether the statements in Anderson's affidavit are "perjurious" and whether the notations on the invoices were not contemporaneously made raise issues of credibility.
Assuming that the objections were timely made, plaintiff argues in the alternative that defendants disputed only $12,305 in charges. However, the Court declines to grant plaintiff partial summary judgment. Viewing the allegations in the light most favorable to defendants, if plaintiff allegedly agreed to resolve billing disputes with defendants at the finalization of the prospectus (see Anderson Aff. ¶ 6), it is not entirely clear that the absence of notations on other invoices necessarily indicates that defendants did not object to their reasonableness, given the parties' course of dealing over these alleged billing objections.
Dated:
J.S.C.
[*3]Check one:FINAL DISPOSITIONX NON-FINAL DISPOSITION
Check if appropriate:DO NOT POSTREFERENCE
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