Gittelman & Co., P.C. v Penta Restoration Corp.

[*1] Gittelman & Co., P.C. v Penta Restoration Corp. 2013 NY Slip Op 50228(U) Decided on February 6, 2013 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 6, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
12-494.

Gittelman & Company, P.C., Plaintiff-Respondent,

against

Penta Restoration Corp., Christopher Fillas and Nicholas Fillas, Defendants-Appellants.

Defendants appeal from a judgment of the Civil Court of the City of New York, New York County (Kathryn E. Freed, J.), entered December 7, 2011, which, upon a prior order granting summary judgment in the principal amount of $13,879.75 and after a hearing to determine the amount of plaintiff's attorneys' fees, awarded plaintiff damages in the principal sum of $25,425.43.

Per Curiam.

Judgment (Kathryn E. Freed, J.), entered December 7, 2011, affirmed, with $25 costs.

We sustain the grant of plaintiff's motion for summary judgment on its account stated cause of action. The undisputed record evidence demonstrates that plaintiff provided accounting services to the corporate defendant and mailed defendant detailed monthly billing statements, and that defendant received and retained the invoices without objection (see RPI Professional Alternatives v Citigroup Global Mkts. Inc., 61 AD3d 618 [2009]). Defendant's reliance on claimed oral objections to the invoices, with no specificity as to the time of any such objections or the content of the conversations in which they were made, were insufficient to raise an issue of fact (see Stephanie R. Cooper, P.C. v Robert, 78 AD3d 572, 573 [2010]). Further, defendant's conclusory claim that it orally notified plaintiff that it "will no longer be requiring [plaintiff's] services" was contradicted by its actions in entering into a new agreement with plaintiff shortly thereafter (see Berkman Bottger & Rodd, LLP v Moriarty, 58 AD3d 539 [2009]).

Defendants' assertion that the action should be dismissed pursuant to a forum selection clause in the governing contract is unpreserved, since it was not raised before Civil Court (see [*2]Andrew Greenberg, Inc. v Sir-Tech Software, Inc., 297 AD2d 834, 835 n 1 [2002]; see also CDR Créances S.A.S. v Cohen, 77 AD3d 489, 491 [2010]; IndyMac
Bank, F.S.B. v LaMattina, 49 AD3d 395 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur

Decision Date: February 06, 2013