Goldberg & Connolly v Hancock Indus., Ltd.
Annotate this CaseDecided on May 29, 2007
District Court of Nassau County, First District
Goldberg & Connolly, Plainff,
against
Hancock Industries, Ltd., Defendant.
11258/06
Pro Se Plaintiff: Goldberg & Connolly
Attorneys for Defendant: David Bolton, P.C.
Andrew M. Engel, J.
This action was commenced on or about April 4, 2006, seeking to recover the sum of $15,000.00 in legal fees allegedly earned and unpaid. Issue was joined on or about July 14, 2006. The Plaintiff now moves for an order granting it summary judgment against the Defendant on its Second Cause of Action for an account stated. The Defendant opposes the motion.
Summary judgment is a drastic remedy, Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 (1957), which should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d 141 (1978) To prevail, the movant must first make a showing of entitlement to judgment, as a matter of law, Bank of New York v. Granat, 197 AD2d 653, 602 NYS2d 942 (2nd Dept. 1993), tendering evidentiary proof in admissible form. Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065, 416 NYS2d 790 (1979).
The Plaintiff submits the affidavit of Michael Rosenthal, Esq., an associate of the Plaintiff law firm. Mr. Rosenthal avers that the Plaintiff began to perform legal services for the Defendant, on or about March 2, 2004, pursuant to a written retainer dated March 9, 2004. Mr. Rosenthal further alleges that between March 2, 2004 through April 20, 2004 the Plaintiff continued to perform legal services for the Defendant, resulting in total fees of $26,654.13.
According to Mr. Rosenthal, the Defendant was sent monthly invoices, detailing, inter alia, the services provided, the disbursements incurred, the unpaid balance from prior invoices, the new charges incurred, and the total due. The Plaintiff submits eleven (11) such invoices, from July 2004 through May 1, 2005. The last invoice shows a balance due of $16,357.00. Mr. Rosenthal alleges that the Defendant received and retained all of these invoices, made partial payments thereon "and did not assert any specific contemporaneous complaint or objection to any invoice or any billing matter set forth therein." (Rosenthal Affidavit 3/9/07, ¶ 11)
The Plaintiff has established its prima facie right to a judgment in its favor, as a [*2]matter of law, upon its claim of an account stated, based upon the foregoing proof that the Defendant received and retained, without prompt objection, the invoices that the Plaintiff sent seeking payment for services rendered. Bracken & Margolin, LLP v. Schambra, 270 AD2d 221, 703 NYS2d 520 (2nd Dept. 2000); Thaler & Gertler, LLP v. Weitzman, 282 AD2d 522, 722 NYS2d 891 (2nd Dept. 2001) Having done so, it is incumbent upon the Defendant to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do." Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980).
The Defendant offers the affidavit of its President, Robert Hancock, who acknowledges having retained the Plaintiff, but asserts that the Plaintiff did not timely and efficiently perform the services for with it was retained. Mr. Hancock alleges that due to the manner in which the Plaintiff was performing its work, he fired the Plaintiff and represented the Defendant himself. Mr. Hancock acknowledges having paid the Plaintiff in excess of $10,000.00 and that an outstanding balance of approximately $15,000.00 remains.
Germain to the Plaintiff's claim of an account stated, Mr. Hancock alleges that he "personally complained about the plaintiff's bills to David Wolff, an attorney employed by the plaintiff." (Hancock Affidavit 4/16/06, ¶ 11) According to Mr. Hancock, these complaints were made to Mr. Wolf because he was the attorney at the Plaintiff's firm who was actively involved in the work being performed for the Defendant. Mr. Hancock further alleges that he "told Mr. Wolf repeatedly that Hancock Industries would not make further payments to the plaintiff unless and until the billing issue was addressed - with either a good explanation for the astronomical amount charged, or a reasonable adjustment thereto." (Hancock Affidavit 4/16/06, ¶ 12) Mr. Hancock claims that Mr. Wolf represented that he would speak to his boss about this issue, but nothing was done.
"Whether a bill has been held without objection for a period of time sufficient to give rise to an inference of assent, in light of all of the circumstances presented, is ordinarily a question of fact, and becomes a question of law only in those cases where only one inference is rationally possible (citations omitted)". Legum v. Ruthen, 211 AD2d 710, 621 NYS2d 649 (2nd Dept. 1995); see also: Yannelli, Zevin & civardi v. Sakol, 298 AD2d 579, 749 NYS2d 270 (2nd Dept. 2002); Arrow Employment Agency, Inc. v. David rosen Bakery Supplies, 2 AD3d 762, 769 NYS2d 732 (2nd Dept. 2003) While oral objections to an account stated are sufficient to defeat a motion for summary judgment, Prudential Building Maintenance Corp. v. Burton Siedman Associates, Inc., 86 AD2d 519, 445 NYS2d 758 (1st Dept. 1982), the Defendant must do more than offer self-serving bald allegations of oral protest. Darby v. Darby, 95 NY2d 308, 716 NYS2d 378 (2000); Greenspan & Greenspan v. Wenger, 294 AD2d 539, 742 NYS2d 875 (2nd Dept. 2002); Manhattan Telecommunications Corp. v. Best Payphones, Inc., 299 AD2d 178, 749 N.Y.S.2d 246 (1st Dept. 2002) The Defendant will have to raise specific allegations of protest, indicating when, how, and/or to whom objections were made, along with some indication of the content of the conversation(s) had. Diamond & Golomb, P.C. v. D'Arc, 140 AD2d 183, 527 NYS2d 796 (1st Dept. 1988) [summary judgment denied; although defendant did not specify the dates of protest, he provided the name of the individual to whom he complained and the substance of their conversation]; 1000 Northern of New York Co. v. Great Neck Medical Associates, 7 AD3d 592, 775 NYS2d 884 (2nd Dept. 2004) [summary judgment denied; "defendants set forth specific, as opposed to general, allegations of protest in support of their position, as they relate to whom and when their objection to the rent invoices were made]; [*3]Sandvoss v. Dunkelberger, 112 AD2d 278, 491 NYS2d 724 (2nd Dept. 1985) [summary judgment denied; defendant offered specific allegations of protest, including when and to whom her objections were made and the substance of the conversation]; Santora & McKay v. Mazzella, 86 AD2d 519, 445 NYS2d 758 (1st Dept. 1992) [summary judgment denied; defendant identified individual spoken to and substance of conversation]; Fink, Weinberg, Fredman, Berman & Lowell, P.C. v. Petrides, 80 AD2d 781, 437 NYS2d 1 (1st Dept. 1981)[summary judgment granted; defendant failed to relate when and to whom the alleged calls of protest were made or the substance of the conversations]; Levinsohn, Lerner, Berger & Langsam v. Gottlieb, 309 AD2d 668, 765 NYS2d 873 (1st Dept. 2003) [summary judgment granted; defendant failed to identify person he spoke to or to specify the substance of the alleged conversation]
Viewing the evidence presented herein in a light most favorable to the Defendant, Corvino v. Mount Pleasant Central School District, 305 AD2d 364, 757 NYS2d 896 (2nd Dept. 2003); Tassone v. Johannemann, 232 AD2d 627, 648 NYS2d 708 (2nd Dept.,1996), the court finds that the Defendant has raised genuine issues of fact which preclude the granting of the Plaintiff's motion for summary judgment. Specifically, the Defendant offers more than bald allegations of protest, identifying David Wolf, Esq. as the individual at the Plaintiff's firm to whom he protested the amounts claimed due and indicated that he believed the fees charged to be excessive, and that Mr. Wolf indicated he would speak to his boss about the Defendant's complaints. Whether or not such conversations of protest actually occurred and whether or not the Plaintiff can ultimately demonstrate the existence of an account stated will have to await a determination by the trier of facts.
Accordingly, the Plaintiff's motion for summary judgment is denied.
This constitutes the decision and order of this court.
Dated: Hempstead, New York
May 29, 2007
___________________________
ANDREW M. ENGEL
J.D.C.
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