Yellon v Sirlin
Annotate this CaseDecided on April 2, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MOLIA and LaCAVA, JJ
2009-560 N C.
Lawrence Yellon, d/b/a INTERCOUNTY JUDICIAL SERVICES, Respondent,
against
Alan Sirlin, Esq., Appellant.
Appeal from an order of the District Court of Nassau County, Fourth District (Bonnie P.
Chaikin, J.), dated January 8, 2009, deemed from a judgment of the same court entered January
16, 2009 (see CPLR 5520 [c]). The judgment, entered pursuant to the January 8, 2009 order
which denied defendant's motion for summary judgment dismissing the action and, upon a
search of the record, granted summary judgment to plaintiff, awarded plaintiff the principal sum
of $4,928.50.
ORDERED that the judgment is reversed without costs and so much of the order dated January 8, 2009 as, upon searching the record, granted summary judgment to plaintiff is vacated.
Plaintiff Lawrence Yellon d/b/a Intercounty Judicial Services provides legal services to attorneys, including service of legal process, filing of court papers and retrieving legal documents. Plaintiff brought the instant small claims action against defendant Alan Sirlin, Esq., to recover the sum of $4,928.50 for services performed at defendant's request in connection with litigation in which defendant was the attorney of record. Plaintiff also sought to recover based on an account stated. Thereafter, defendant moved for, among other things, summary judgment dismissing the action, claiming that he was not personally responsible for payment of the litigation expenses incurred since he was acting as an agent for his client, a disclosed principal. Moreover, defendant argued, with respect to one particular lawsuit for which most of the services had been performed, that plaintiff had agreed to defer receipt of payment pending a settlement or verdict therein. Plaintiff, in opposition to the motion, denied the allegation that there was an agreement to defer receipt of payment in the action in question until a settlement or verdict was reached, and offered a statement of defendant's account to demonstrate that, in other cases, defendant had paid for plaintiff's services either by money orders or by checks from defendant's [*2]trust account. Plaintiff stated that defendant had been billed for the services rendered, but plaintiff had received no response, and also contended that at no time prior to this action had defendant ever indicated that he was not personally responsible for the services provided by plaintiff on behalf of defendant's clients or that defendant was acting as an agent on their behalf. The District Court denied defendant's motion and, upon a search of the record, granted summary judgment in favor of plaintiff, based on its determination that plaintiff had established a prima facie entitlement to judgment as a matter of law based on an account stated. Judgment was entered in the principal sum of $4,928.50, and the instant appeal by defendant ensued.
An attorney who is representing a client and who incurs litigation expenses with third parties, such as printers and process servers, acts as an agent for a disclosed principal and is not personally liable for contracts made on behalf of the client unless the attorney assumed responsibility for said expenses (see Sullivan v Greene & Zinner, 283 AD2d 420 [2001]; see also Mantell v Samuelson, 4 Misc 3d 134[A], 2004 NY Slip Op 50765[U] [App Term, 9th & 10th Jud Dists 2004]). In our opinion, plaintiff raised an issue of fact, based on the prior dealings of the parties, as to whether defendant had assumed responsibility for the cost of plaintiff's services, an issue which must be explored upon the trial of the action (see also Restatement (Third) of Law Governing Lawyers § 30). We note that General Business Law § 399-cc, which the District Court referred to in its decision, is limited in its scope to stenographic services provided to an attorney, and does not apply to the case at bar.
With respect to so much of the order as, upon searching the record, granted summary judgment to plaintiff, we note that, in order to establish an account stated, there must be a debtor and creditor relationship between the parties as to the items forming the account (see 1 NY Jur 2d, Accounts and Accounting § 11). Since there is an issue of fact as to whether defendant undertook to assume responsibility for payment, plaintiff was not entitled to relief at this juncture upon a theory of account stated. In any event, plaintiff did not submit any evidence as to when his invoices had been sent to or received by defendant (see Yannelli, Zevin & Civardi v Sakol, 298 AD2d 579 [2002]). Consequently, the District Court erred in granting summary judgment to plaintiff on his account stated cause of action.
The judgment in favor of plaintiff is therefore reversed and so much of the order as, upon searching the record, granted summary judgment to plaintiff is vacated.
Nicolai, P.J., Molia and LaCava, JJ., concur.
Decision Date: April 02, 2010
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