Marcus & Co., LLP v Abraham

[*1] Marcus & Co., LLP v Abraham 2011 NY Slip Op 51911(U) Decided on October 20, 2011 Supreme Court, Nassau County Marber, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2011
Supreme Court, Nassau County

Marcus & Company, LLP, Plaintiff,

against

Gideon Abraham, Defendant.



002864/09



Counsel for the Plaintiff:

Leffler Marcus & McCaffrey

Seth L. Marcus, Esq.

200 Madison Avenue

Suite 1901

New York, New York 10016

Counsel for the Defendant:

Arthur I. Winard, P.C.

Mark L. Rosenfeld, Esq.

420 Lexington Avenue

Suite 2806

New York, New York 10170

Randy Sue Marber, J.

Upon the foregoing papers, the Plaintiff's motion, pursuant to CPLR § 3212 seeking summary judgment against the Defendant on an account stated in the amount of $39,481.75, together with [*2]statutory interest from October 1, 2007 is GRANTED. That branch of the Plaintiff's motion which seeks an award of counsel fees pursuant to paragraph 7.3 of the retainer agreement is set down for a hearing to determine the amount due and owing.[FN1]

The Plaintiff, a certified public accounting firm, commenced this action based upon breach of contract, unjust enrichment and an account stated to recover unpaid fees for forensic accounting and valuation services for the period of February 2006 up to and including September 4, 2007. The fees were incurred by the Defendant in connection with an acrimonious matrimonial proceeding. The written retainer agreement executed by the parties provides in paragraph 4.2 that, in the event the Defendant disagreed with or questioned the amount due under a bill, the Defendant agreed to:

"communicate such disagreement to the firm in writing within fifteen (15) working days of the invoice date. Any disagreement with any amount not made known to the firm in writing within that period shall be waived."

The Defendant counterclaimed alleging that Plaintiff performed its services in a slipshod, unprofessional manner and that the divorce judgment entered in favor of his ex-wife imposed additional financial obligations upon him that could have been avoided had the Plaintiff properly performed the services for which it was retained. The counterclaim was dismissed by order of the Hon. William R. LaMarca dated October 6, 2009.

An account stated is an agreement between the parties to an account based on prior transactions between them with respect to the correctness of the separate items composing the account and the balance due, if any, in favor of one party or the other. Ruskin, Moscou, Evans & Faltischek v. FGH Really Credit Corp., 228 AD2d 294, 295 (1st Dept. 1996). It is well settled that where an account is made up and rendered, the one who receives it is bound to examine it, and if the accounting is admitted as correct, it becomes a stated account and is binding on both parties. The balance is the debt which may be sued for and recovered by law. If the recipient fails to object within a reasonable time, the recipient becomes bound by the account, absent fraud, mistake or other equitable consideration. Roseman Colin Freund Lewis & Cohen v. Neuman, 93 AD2d 745, 746 (1st Dept. 1983).

Here, the Defendant's receipt and retention of invoices seeking payment for professional services rendered, without objection within a reasonable time, gives rise to an account stated thereby entitling the Plaintiff to summary judgment in its favor. Darby & Darby, P.C. v. VSI Intern., Inc., [*3]95 NY2d 308, 315 (2000).

The proponent of a summary judgment motion must demonstrate that there are no material issues of fact in dispute and that it is entitled to judgment as a matter of law. Giuffrida v. Citibank Corp., 100 NY2d 72, 81 (2003). Upon such a showing, the party opposing the motion bears the burden of producing evidentiary proof in admissible form sufficient to require a trial of material questions of fact. Moore v. 3 Phase Equestrian Ctr., Inc., 83 AD3d 677, 679 (2d Dept. 2011).

The Plaintiff has satisfied all of the elements of an account stated. The Defendant's claims in opposition fail to raise a material issue of fact as to any of these elements. His self-serving, bald allegations of oral protest, which fail to detail when and to whom the Defendant spoke, or the substance of the conversations, are facially insufficient to establish that the Defendant protested the invoices and are insufficient to raise a triable issue of fact as to the existence of an account stated. Levisohn, Berger & Langsam v. Gottlieb, 309 AD2d 668 (1st Dept. 2003), lv den. 1 NY3d 509 (2004). The Defendant's claim, without any specifics, that he orally objected to the Plaintiff's invoices and questioned the quality, nature and actual time spent on the purported services rendered, is insufficient to defeat the Plaintiff's summary judgment motion. Bare assertions of oral protest are insufficient to defeat summary judgment, especially where the debtor receiving the account made partial payments on it. Parker, Chapin, Flattau and Klimpl v. Daelen Corp., 59 AD2d 375, 376 (1st Dept. 1977). In addition to the fact that the Defendant made no written protest to the invoices sent to him, and made partial payments on his account during the term of engagement, he signed an acknowledgment both of the sum due and owing and the fact that the sum was fair and reasonable. The acknowledgment of debt dated March 2, 2007 states, in relevant part, as follows:

"This letter will serve to confirm and acknowledge that I have retained the offices of Marcus & Company to represent me in connection with my matrimonial action as forensic accountants. To date, I have incurred fees and expenses to the firm, through February 28, 2007, in the sum of $60,800.50 and this letter will serve to acknowledge and confirm that $52,800.50 is due and owing to the accounting firm of Marcus & Company. I agree to pay the foregoing sums to said accounting firm within 90 days after the conclusion of the trial or settlement."

The Defendant's claim that he signed the acknowledgment under duress is unavailing. Repudiation of an agreement on the ground that it was procured by duress requires a showing of both (1) a wrongful threat and (2) the preclusion of the exercise of free will. No such showing has been made. The Defendant alleges that he had no alternative but to sign the document notwithstanding the fact that he felt he was being "ripped off" as accountant David Marcus told him that he would not testify on the Defendant's behalf if he did not sign. A threat to do that which one has a legal right to do does not constitute duress. Matter of Gavin, 210 AD2d 332, 333 (2d Dept. 1994). The Plaintiff's alleged threat to stop representing the Defendant unless he was paid does not constitute economic duress. Fred Ehrlich, P.C. v. Trullo, 274 AD2d 303 (1st Dept. 2000).

Accordingly, it is hereby

ORDERED, that the Plaintiff's motion for an order awarding it summary judgment, pursuant to CPLR § 3212, against the Defendant, in the amount of $39,481.75, together with statutory interest from October 1, 2007, is GRANTED; and it is further

ORDERED, that subject to the approval of the Justice there presiding and provided a Note of Issue has been filed at least ten (10) days prior thereto, this matter shall appear on the calendar of [*4]CCP on the 19th day of January, 2012 at 9:30 a.m. for a Hearing on the issue of counsel fees; and it is further

ORDERED, that a copy of this order shall be served on the Calendar Clerk and accompany the Note of Issue when filed. The failure to file a Note of Issue or appear as directed may be deemed an abandonment of the claims giving rise to the Hearing; and it is further

ORDERED, that the directive with respect to a Hearing is subject to the right of the Justice presiding in CCP to refer the matter to a Justice, Judicial Hearing Officer or a Court Attorney/ Referee as he or she deems appropriate; and it is further

ORDERED, that the Plaintiff's counsel shall serve a copy of this Order upon counsel for the Defendant pursuant to CPLR § 2103 (b) 1, 2 or 3 within twenty (20) days of the date of this Order.

This decision constitutes the order of the Court.

DATED:Mineola, New York

October 20, 2011

________________________________

Hon. Randy Sue Marber, J.S.C. Footnotes

Footnote 1:Paragraph 7.3 of the retainer agreement provides that:

Any action, proceeding or claim by you arising out of or in relation to this

agreement or the services performed hereunder, must be brought, if at all,

within twelve (12) months after the claim accrued or the termination of

the firm's services, whichever shall sooner occur. The commencement of

any such action, proceeding or claim against the firm shall operate to

terminate the services of the firm, if not already terminated. Should the

firm prevail in any action commenced by you, you hereby agree to be

liable [sic] the reasonable attorney's fees expended in defending said action.

You waive any right to a jury trial in the event a claim is made or action

or proceeding is commenced by you or on your behalf.