JMW 75 LLC v Belkin Burden Wenig & Goldman, LLP

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JMW 75 LLC v Belkin Burden Wenig & Goldman, LLP 2018 NY Slip Op 31945(U) August 10, 2018 Supreme Court, New York County Docket Number: 156352/2017 Judge: Shlomo S. Hagler Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 08/13/2018 09:48 AM 1] NYSCEF DOC. NO. 33 INDEX NO. 156352/2017 RECEIVED NYSCEF: 08/13/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 17 ---------------------------------------------------------------)( JMW75LLC, Index No. ~56352/2017 Plaintiff, -againstBELKIN BURDEN WENIG & GOLDMAN, LLP, DECISION/ORDER Defendant. ----------------------------------------------------------------" HON. SHLOMO S. HAGLER, J.S.C.: In this action sounding in legal malpractice, plaintiff JMW 75 LLC ("JMW 75" or "plaintiff') seeks damages from defendant law firm Belkin Burden Wenig :~ Goldman, LLP ("Belkin Burden" or "defendant") for defendants' alleged failure to properly ·represent plaintiff in seeking to discontinue. a landlord-tenant holdover proceeding in the Housing Part of Civil Court of the City of New York ("Housing Court"). In motion sequence number 001, defendant moves, pursuant to CPLR 3212, for summary judgment to dismiss the complaint and on its first and second counterclaims ifor account stated 1 and breach of contract. In motion sequence number 002, plaintiff moves to admit Jay J. Rice as counsel pro hac vice to represent JMW 75 in this matter. For the reasons stated below, defendant's motion for summary jhdgment, seeking dismissal of the complaint and judgment on its counterclaims, is granted; and ,plaintiffs pro hac vice motion is granted. 1 [*FILED: NEW YORK COUNTY CLERK 08/13/2018 09:48 AM 2] NYSCEF DOC. NO. 33 INDEX NO. 156352/2017 RECEIVED NYSCEF: 08/13/2018 I. Factual Background Plaintiff is the owner and landlord of a building located at 166 West75 1h Street, New York, New York 10023 ("the Building") where tenants Claude Debs ("Debs") and Violaine Galland ("Galland") (collectively, "the tenants or the respondents") reside. In 2008, plaintiff's predecessor-in-interest, 166 West 75th Street LLC ("the Prior Owner"), commenced a summary holdover proceeding in Housing Court against the tenants (166 West 75'" Street LLC v Claude Debs Galland a/k/a Claude Debs and Violaine Debs Galland a/k/a Violaine Galland, Civ Ct, Housing Part, NY County, Nov. 10, 2008, Lebovits, J., Index No. L&T 91914/08). The parties settled the litigation, pursuant to a stipulation dated November 10, 2008, which was "so-ordered" by Hon. Gerald Lebovits ("the Stipulation") (NYSCEF Doc. No. 9, exhibit C). The Stipulation established Debs and Galland as rent stabilit'ed single room occupancy ("SRO") tenants (id.,~~ 3-4), and provided the landlord with an optfon to terminate the tenancy in exchange for the payment of $3 .5 million (id., ~~ 5-7). In addition, the parti~s stipulated to include a liquidated damages clause under the following circumsta.nces: ' . "8. In the event that Landlord brings an action under paragraph 7 [for nonpayment of rent, nuisance or breach of the lease] and fails, the Landlord will pay the Tenant $250,000, irrespective of whether Tenant chooses to vacate the:apartment for the Payment. The Payment shall be as and for liquidated damage's, it being agreed that Tenants' damages in such event, would be impossible to' ascertain, and that the Payment constitutes a fair and reasonable amount under the circumstances and· is not a penalty. *** "12. This Stipulation shall be binding against and shall inure to the benefit of the parties, their agents and successor in interest and shall survive any transfer of · title." (Id. atJ and 4). -2- [*FILED: NEW YORK COUNTY CLERK 08/13/2018 09:48 AM 3] NYSCEF DOC. NO. 33 INDEX NO. 156352/2017 If RECEIVED NYSCEF: 08/13/2018 In 2016, plaintiff commenced a holdover slimmary proceeding ("the Underlying Holdover Proceeding"} against Debs and Galland seeking possession of one ofrespondents' - ' ' - SRO units based upon a claim that respondents-were violating a substantial obl~gation of the . lease and the Housing Maintenance Code -by ail owing ~the premises to be occupied by two children (JMW 75 LLC v Claude Debs andViOlaine Galland, and "John Doe" and "Jane Doe;" Civ Ct, Housing Part, NY County, Oct.1 i, 2016, Schreiber, J, Index No. L&T61276/16). . \ - . . . . Simultaneously; JMW 75 commenced two non-primary residence holdover proceedings with . ' respect to other SRO units occupied byrespondents. At the time of the co~encement of this proceeding in Housing Court, plaintiff was represented by Kap lain & Duval LLP. On May -18, 2016, a Consent to Change 1 Attomey form was filed with the Housing Court substituting _Belkin Burden as attorneys of recbrd for petitioner in place and stead of Kaplain & Duval LLP (NYSCEF Doc. No. 9, Exhibits P and 2). qn October 11,2016, the Hon. Michelle D. Schreiber granted, in relevant part, respondents' motions for summary judgment and counterclaim for liquidated damages in the sum of $250,000, pursuant to the Stipulation (NYSCEF Doc. No. 9, Exhibit E). Ort March 12, 2018, referring to the Stipulation, the AppellateTerm, First Department affirmed the Housing Court's· decision, and ruled irt pert.inent part: "Among other things,· the agreement acknowledged tenants' rent:· stabilized tenancy in five contiguous SRO units and:provided landlord wi-th an_ option to terminate the tenancy in exchange for _payment of $3,500,000. The stipulation further provided that in the event landlord terminated the tenancy for nc)npayment of rent, nuisance or-breach of the 'lease; and obtained possession, tenant~ were not entitled to the $3,500,000 payment; however, if landlord attempted to, terminate the lease on such grounds and failed, landlord was required to pay tenants the liquidated sum $250,000~'' (JMW 75 LLC v Debs, 59 Misc 3d 32, 32 [App Term," _1st Dept 2018]). [*FILED: NEW YORK COUNTY CLERK 08/13/2018 09:48 AM 4] NYSCEF DOC. NO. 33 INDEX NO. 156352/2017 1[ RECEIVED NYSCEF: 08/13/2018 ·II. Motion Sequence Number 001 A. Contentions Defendant contends that there is no material factual dispute that plaintiff purchased the Building without defendant's advice or counsel and that, at the time of plaintiff's purchase, the "so-ordered" Stipulation was in existence and publicly filed. Defendant argues that plaintiff lost a holdover proceeding against another tenant on identical grounds on the basis that there was no agency-iSsued violation (JMW 75 LLC v Wielaard, 47 Misc 3d 133[A], 2015 NY Slip Op 50473 [UJ [App Term, 181 Dept 2015]). Notwithstanding t~e foregoing, plaintiff engaged prior counsel to commence a holdover proceeding against Debs and Galland, which seemingly lacked factual or legal basis. Defendant emphasizes that plaintiff was represented by other counsel at the time of the commencement of the Underlying Holdove~ Proceeding, and that defendant was substituted into that proceeding after its commencement and service of tenants' motions seeking dismissal of said proceeding, and a judgment against plaintiff for the liquidated damages. Defendant argues that, up.on being substituted into the Underlying Holdover Proceeding, Belkin Burden immediately advised plaintiff to discontinue the holdover proceeding pursuant to CPLR 3217. Defendant also claims it was unaware of the Stipulation until its existence was raised by tenants in their motions. Finally, defendant argues that plaintiff's Verified Response to Counterclaims acknowledges and concedes the existence of an attorney-client relationship; that plaintiff executed a retainer agreement; that plaintiff never objected to defendant's legal invoices and confirmed on at least four occasions that the bills would be paid. -4- / [*FILED: NEW YORK COUNTY CLERK 08/13/2018 09:48 AM 5] NYSCEF DOC. NO. 33 INDEX NO. 156352/2017 RECEIVED NYSCEF: 08/13/2018 In opposition, plaintiff makes several arguments. Plaintiff argues that defendant did not meet its prima facie burden to warrant summary judgment as it failed to submit an expert affidavit in support of the motion. Plaintiff claims that defendant's motion is premature as no discovery has occurred. Plaintiff argues that there are material issues of fact, which preclude summary judgment on plaintiffs legal malpractice claim. Plaintiff claims that the issue is whether defendant breached the standard of care required in failing to make necessary equitable and legal arguments in support of plaintiffs application to voluntary discontinue the holdover petition against the tenants .. Specifically, plaintiff claims that plaintiffs lack of knowledge or notice regarding the Stipulation and the unique rights granted to tenants thereby warrant that plaintiff should not be bound by the Stipulation, or that it should not be enforceable'. Plaintiff stresses that it was not able to obtain the types of due di.ligence documents normally provided by the seller, including the Stipulation and the tenants' 2008 lease, because the building was bought at a foreclosure sale ..Plaintiff argues that standard due diligence do.es not include searches of closed court cases; that tenants have unclean hands as they actively concealed the existence of the aforementioned documents, and that these materialized at a suspicious time, namely only seven days after the Prior Owner's holdover proceeding was filed and six months before the foreclosure proceeding against that owner was commenced. In addition, plaintiff argues that defendant's legal analysis relies on the wrong standard ofreview. Defendant filed a motion for summary judgment, pursuant to CPLR 3212, not a motion to dismiss based on CPLR 3211. Finally, plaintiff argues that defendant's motion on its counterclaims is premature and should not be adjudicated until after the issue of defendant's malpractice is determined. -5- J [*FILED: NEW YORK COUNTY CLERK 08/13/2018 09:48 AM 6] NYSCEF DOC. NO. 33 INDEX NO. 156352/2017 RECEIVED NYSCEF: 08/13/2018 In reply, defendant argues that the sole issue to be determinec:I by this Court is a question of law as to whether defendant engaged in legal malpractice which was the proximate cause of plaintiffs injury and, but for the alleged malpractice, plaintiff would have been successful in the Underlying Holdover Proceeding. Defendant states that plaintiff makes numerous concessions, including that plaintiff purchased the Building without defendant's advice and counsel; that plaintiff failed to undertake due diligence by searching court re.cords for litigation involving the tenants, prior to and after the purchase of the ~uilding and before commencing the Underlying Holdover Proceeding, and that, at the time of plaintiff's purchase, the .Stipulation was in existence and publicly filed. Defendant re-emphasizes the argument that plaintiff was represented by other counsel, not Belkin Burden, and the Underlying Holdover Proceeding was commenced on a flawed legal · basis even though plaintiff had actual knowledge of the Wielaard case in which the Appellate Term ruled against plaintiff on the very same legal theory. Plaintiff admits that defendant was substituted into the Underlying Holdover Proceeding after it was commenced and after service of the tenants' motions seeking dismissal and an award· of damages, and then defendant immediately advised plaintiff to discontinue, pursuant to CPLR 3217, with an offer to pay the tenants' reasonable attorney's fees. Plaintiff also concedes that defendant was unaware of the Stipulation until its existence was raised by the tenants in their motions, and that plaintiff never objected to defendant's legal invoices, and in fact, confirmed on at least four occasions that the bills would be paid. Defendant highlights that plaintiff does not address or respond to, and thus admits, that it should never have commenced the fatally defective Underlying Holdover Proceeding, in light of an ident~cal holdover proceeding, to which it was a party, that was dismissed in the absence of an -6- I. [*FILED: NEW YORK COUNTY CLERK 08/13/2018 09:48 AM 7] NYSCEF DOC. NO. 33 INDEX NO. 156352/2017 RECEIVED NYSCEF: 08/13/2018 agency-issued violation. Indeed, notwithstanding plaintiff's knowledge of the Wielaard case, it engaged prior counsel to commence the legally and factually flawed holdover proceeding and but for the commencement thereof, no claim for damages under the Stipulation would have arisen. · Defendant argues that there are no issues of fact with respect to the legal services provided by defendant. Plaintiff's claim that defendant's failure to present or argue certain legal positions, which defendant deems untenable, does not create a genuine issue of fact.. Indeed, plaintiff's arguments of lack of knowledge, belief that tenants actively concealed the existence of ' the Stipulation, claim that due diligence does not include searching public court files, and suggestion of a conspiracy theory as to the timing of the Stipulation and lease, were never viable and are irrelevant to this inquiry. Defendant claims that there is no requirement for an expert's affidavit, as the facts herein are not disputed, and the ordinary experience of the fact-finder is sufficient to determine the adequacy of the professional services provided. Moreover, defendant alleges that but for the insufficient consultation with prior counsel and plaintiff's and/or prior counsel's failure to conduct due diligence and the subsequent commencement of an unviable holdover proceeding, there would have been no claim for damages .. Finally, defendant argues that plaintiff's overbroad discovery request doesn't create an issue of fact that would change the outcome of this action as the facts are undisputed. B. Summary Judgment Legal Standard The party seeking summary judgment under CPLR § 3212 has the initial burden of proving entitlement to relief by showing that there are no issues of fact needing to be determined -7- [*FILED: NEW YORK COUNTY CLERK 08/13/2018 09:48 AM 8] NYSCEF DOC. NO. 33 INDEX NO. 156352/2017 RECEIVED NYSCEF: 08/13/2018 at trial (Winegradv New York Univ. Med. Ctr., 64 NY2d'851, 853 [1985]). Once this burden is met, the opposing party defeats summary judgment by laying bare "his [or her] proofs in order to show his [or her] defenses are real and capable of being established on trial ... and it is insufficientto merely set forth averments of factual or legal conclusions" (Schiraldi v US Min. Products, 194 AD2d 482, 483 [1st Dept 1993] [internal quotation marks and citation omitted]). If the opposing party fails to submit evidentiary facts to controvert the facts set forth in the movant's papers, the movant's facts may be deemed admitted and summary judgment granted . since no triable issue of fact exists (Kuehne & Nagel, Inc. v Raiden, 36 NY2d 539, 544 [1975]). The court deciding a summary judgment motion must construe the evidence in favor of the party arguing against the motion (Mullin v JOO Church LLC, 12 AD3d 263, 264 [1st Dept 2004]). C. Discussion 1. Legal Malpractice Cause of Action a. Standard of Law "An action for legal malpractice requires proof of three elements: (1) that the attorney was negligent; (2) that such negligence was a proximate cause of plaintiffs losses; and (3) proof 1 of actual damages" (Global Bus. Inst. v Rivkin Radler LLP, 101AD3d651, 651 [!5 Dept2012]). To recover damages, "a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actuai'and ascertainable damages" (Rudolfv Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007] [internal quotation marks and citation omitted]). "An attorney's 'selection'of -8- [*FILED: NEW YORK COUNTY CLERK 08/13/2018 09:48 AM 9] NYSCEF DOC. NO. 33 INDEX NO. 156352/2017 RECEIVED NYSCEF: 08/13/2018 one among several reasonable courses of action does not constitute malpractice"' (Rodriguez v Lipsig, Shapey, Manus & Moverman, 81 AD3d 551, 552 [1st Dept 2011]) quoting Rosner v Paley, _65 NY2d 736, 738 [1985]; see Boye v Rubin & Bailin, LLP, 152 AD3d 1, 9 [1st Dept 2017]). "To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action ... but for the lawyer's negligence" (Rudolfv Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442). "[C]onclusory allegations of proximately caused damages cannot serve as a basis for a legal malpractice claim" (Freeman v Brecher, 155 AD3d 453, 453 [1st Dept 2017]. In the event the loss is due to an intervening cause, summary judgment will be granted to - the defendant (Brooks, 21 AD3d at 734; see also D.D. Hamilton Textiles v Estate of Mate, 269 AD2d 214, 215. [1st Dept 2000]). b. The Holdover Proceeding On or about February 10, 2016, JMW 75 served a Notice to Cure on respondents, which provided.in relevant part: "1. That you are allowing two (2) children over the-age of one (1) year but under the age of 16 years to occupy the unit in violation of the Housing Maintenance Code, Article 4, §2076(b); "2. That the total square footage of the unit exceeds 130 sq. ft. and you have allowed the SRO unit to be occupied by more than two (2) persons in violation of the Housing Maintenance Code, Article 4, §27-2075(a)(2);" (Ten [10] Day Notice to Cure; NYSCEF Doc. No. 9, Exhibit D). A ten day Notice of Termination dated March 14, 2016 was served thereafter based on respondents' alleged failure to comply with the Notice to Cure. Paragraph 4 of the Petition sets -9- [*FILED: NEW YORK COUNTY CLERK 08/13/2018 09:48 AM 10] NYSCEF DOC. NO. 33 T INDEX NO. 156352/2017 RECEIVED NYSCEF: 08/13/2018 forth that "Termination is based upon the grounds enumerated in the Thirty (30) [sic] Day Notice of Termination" (id.). The record reveals that the foregoing predicate notices as well as the Notice of Petition and Petition in the Underlying Holdover Proceeding dated April 4, 2016 were prepared by the law offices ofKaplain & Duval LLP, as attorneys for petitioner, JMW 75. c. Applicable Statutory Pi:ovisions and Relevant Case Law In support of its holdover proceeding, JMW 75 relied on two separate sections of the New York City Housing Maintenance Code (Administrative Code§§ 27-2001 et seq.). Specifically, Section 27-2075(a)(2), which governs the "Maximum Permitted Occupancy," provides in pertinent part: "a; No dwelling unit shall be occupied by a greater number of persons than is permitted by this section. *** "(2) A living room in a rooming unit may be occupied by not more than two persons if it has a minimum floor area not less than one hundred ten square feet in a rooming house, or one hundred thirty square feet in a single room occupancy." Section 27-2076(b) of the Housing Maintenance Code [Prohibited Occupancies] prohibits, in relevant part, families with children under the age of 16 from residing in SRO units, which are defined as ''rooming units" that lack either an in-unit kitchen or an in-unit bathroom. According to well-established jurisprudence, in order to maintain an eviction proceeding by reason of the aforementioned occupancy regulations, ,evidence is required that a violation of the available space requirements has been placed against the premises, or the proceeding will be deemed to be premature. -10- I I [*FILED: NEW YORK COUNTY CLERK 08/13/2018 09:48 AM 11] NYSCEF DOC. NO. 33 INDEX NO. 156352/2017 RECEIVED NYSCEF: 08/13/2018 It is significant that, prior to the colllli1encement of this holdover proceeding, plaintiff initiated the Wielaard case, a similar proceeding against respondents' neighbor, which was dismissed by the Housing Court. In Wielaard, the Appellate Term, Fi~st Department, affirmed the Housing Court's decision, holding that: "This illegal occup~ricy holdover pro~eeding (see Rent Stabilization Code [9 NYCRR] §2524[c]), based upon the allegation that "a minor child of approximately six or seven years of age" was residing in the Single Room Occupancy hotel unit in violation of Housing Maintenance Code (Administrative Code of City of NY)§ 27-2076(b),. was correctly dismissed on tenant's motion. In the absence of any showing that a violation has been placed against the premises or that landlord was actually "subject to civil or criminal penalties," the proceeding is premature (see 210 W 94 LLC v Concepcion, 2003 NY Slip Op 50612[U] [App Term, 1st Dept 2003]; 625 W End Inc. v Howard, 2001 NY Slip Op 40496[U] [App Term, 1st Dept 2001] )." (47 Misc 3d 133[A], 2015 NY Slip Op 50473 [U], *1). d. Analysis In the Underlying Holdover Proceeding, the Hon. Michelle D. Schreiber, J.H.C., quoting the Wielaard decision, granted the tenants' motion and denied landlord's cross-motion as follows: "The petitioner claims that the respondents are violciting a substantial obligation of their tenancy based upon having two children in the subject premises in violation of the Housing Maintenance Code; it does not allege a violation has been issued. The petitioner previously commenced a similar case against a neighbor, JMW 75 LLC v Wielaard; the case was dismissed. On appeal the Appellate Term affirmed the dismissal stating, "[i]n the absence of any showing that a violation has been placed against the premises or that landlord was actually 'subject to civil or criminal penalties,' the proceeding is premature (citations omitted)." JMW 75 LLC v Wielaard, 47 Misc 3d 133(A) (AT pt Dept 2015). Based upon the foregoing, the respondents' motions for summary judgment dismissing the petition are granted." (NYSCEF Doc. No. 9, Exhibit Eat 6). -11- [*FILED: NEW YORK COUNTY CLERK 08/13/2018 09:48 AM 12] NYSCEF DOC. NO. 33 INDEX NO. 156352/2017 RECEIVED NYSCEF: 08/13/2018 'The common thread in both Wielaard and the Underlying Holdover Proceeding is one simple fatal flaw in plaintiffs cause of action. Plaintiff is missing evidence of a violation having . been placed against the premises necessary to warrant any likelihood of success of its argument. As such, it is beyond cavil that plaintiff knowingly commenced the meritless Underlying Holdover Proceeding against Debs and Galland which directly precipitated the adverse determination and ultimately resulted in the triggering of its liability to pay the liquidated damages of $250,000.00. Simply stated, if plaintiff had not pursued the fatally flawed claitns in the Underlying Holdover Proceeding, plaintiff would not have faced any liability whatsoever. It was plaintiffs actions, and not the defendant's, that caused its own damages. If plaintiff possessed viable grounds for Underlying Holdover Proceeding, it would not have subjected itself to liability under the Stipulation's liquidated damages clause. It is not so much the alleged ignorance of the existence of the Stipulation and the provision relating to the trigger of the liquidated damages language as the lack of viability of the proceeding itself that caused injury to plaintiff. Any argument claiming ignorance would not have changed the course of the proceeding. Plaintiff would not have prevailed in the Underlying Holdover Proceeding with the proposed alterative arguments. Here, defendant's alleged negligence was not the proximate cause of the injury suffered by plaintiff. Indeed, the successor law firm had no responsibility for commencing the Underlying Holdover Proceeding, which was not viable from its.inception. In any event, "allegations concerning [an attorney's] conduct of litigation itself are simply dissatisfaction with strategic choices and ... do not support a malpractice claim as a matter oflaw" (Bernstein v Oppenheim & Co., 160 AD2d 428, 431 [1st Dept 1990]). "An attorney's 'selection of one among several reasonable courses of action does not constitute malpractice'" (Rodriguez v -12- • I i [*FILED: NEW YORK COUNTY CLERK 08/13/2018 09:48 AM 13] NYSCEF DOC. NO. 33 INDEX NO. 156352/2017 RECEIVED NYSCEF: 08/13/2018 Lipsig, Shapey, Manus & Moverman P.C., 81 AD3d 551, 552 [1st Dept 2011] quoting Rosner v Paley, 65 NY2d 736, 738 [1985]). Contrary to plaintiffs contentions, there is no need for discovery or expert testimony under these circumstances (see Wo Yee Hing Realty Corp. v Stern, 99 AD3d 58, 63 [l51 Dept 2012] [defendant not required to-submit expert testimony to resolve the issue of proximate cause as "[h]ere, by contrast [with Suppiah v Kalish, 76 AD3d 829 (1st Dept 2010)], the mechanics of the governing legal framework are undisputed, and the issue of proximate cause turns on the discrete factual question of whether plaintiff took the requisite actions to identify and purchase a suitable replacement property in the required time frame"]; compare Suppiah, 76 AD3d at 832-833 [expert opinion required to determine proximate cause in legal malpractice case concerning an immigration matter involving issues so "byzantine" that they were "beyond the ordinary experience of a factfinder"]). Therefore, defendant's motion for summary judgment seeking dismissal of the complaint soundin$ in legal malpractice must be granted. 2. Account Stated Counterclaim a. Legal Standard '"An account stated is_ an agreement between the parties to an account based upon prior transactions between them with respect to the correctness of the separate items composing the account and that balance due, if any, in favor of one party or the other"' (Paul, Weiss, Rifkind, Wharton & Garrison v Koons, 4 Misc 3d 447, 450 [Sup Ct, NY County 2004], quoting Chisholm-Ryder Co. v Sommer & Sommer, 70 AD2d 429, 431 [4th Dept 1979]). In that regard, . / the rule is clear, a showing that defendant received monthly statements coupled with either the retention of bills without objection within a reasonable time or partial payment will give ris7 to -13. . [*FILED: NEW YORK COUNTY CLERK 08/13/2018 09:48 AM 14] NYSCEF DOC. NO. 33 INDEX NO. 156352/2017 RECEIVED NYSCEF: 08/13/2018 an account stated (Morrison Cohen Singer & Weinstein, LLP v Waters, 13 AD3d 51, 52 [1st Dept 2004 ]). b. Analysis In support of its motion, defendant submits a copy of its executed retainer agreement with plaintiff in connection with its representation in the Underlying Holdover Proceeding (NYSCEF Doc. No. 9, Exhibit B). Defendant also presents a copy of the invoices for professional legal ;ervices rendered (id., Exhibit K), which it asserts were received by plaintiff every month (Brian Y. Epstein affirmation, if 66). Defendant's affiant, partner Brian Y. Epstein ("Epstein"), who asserts that he has personal knowledge of the underlying facts, relates that plaintiff "never obje~ted to any of the attorneys' fees, charges, costs or expenses set forth on the invoices" (id.). Defendant states that it consulted with plaintiff about its unpaid fees and that plaintiff not only retained defendant's invoices without objection, but also "regularly promised to pay the monthly invoices in full without dispute" (id at if 67) .. Defendant's monthly invoices range from October 2016 through and including May 2017 and include an "Accounts Receivable by Invoice Report," which runs through June 2017 and amounts to defendant's account stated of $55,885.82. The e-ma~l exchanges between the parties in the record (NYSCEF Doc. No. 9, Exhibits L-0) corroborate that assertion, and demonstrate that plaintiff promised on several occasions in . writing to pay the account. Indeed, in connection with the foregoing period of time, the court . notes that, in January 2017, plaintiffs associate, Brian Hart ("Hart"), responds to a payment request for October through December 2016 with: "I am approving these in our new-payment system right now. Will get you payment schedule'" (NYSCEF Doc. No. 9, Exhibit N). In -14- [*FILED: NEW YORK COUNTY CLERK 08/13/2018 09:48 AM 15] NYSCEF DOC. NO. 33 INDEX NO. 156352/2017 RECEIVED NYSCEF: 08/13/2018 response to Epstein's request for payment of past-due invoices ranging from October 2016 through May 2017, plaintiffs Chief Operating Officer responds via e-mail: "Brian we are working on it as we speak" (NYSCEF Doc. No. 9, Exhibit 0at1). Defendant asserts that, notwithstanding the foregoing statements, plaintiff failed to make any payment and that plaintiff started objecting to the invoices only after commencement of this action. Other than plaintiffs legal malpractice claim which has been dismissed, plaintiff fails to provide any substantive opposition to defendant's motion for summary judgment on its account stated counterclaim. In fact, plaintiffs president does not dispute defendant's account and admits that no objection was raised to paymen~ of the invoices: "While, during the time the Holdover Action was pending and shortly thereafter, JMW did communicate to Defendant that it was JMW' s then intention to pay its bills, as Simon Baron and its affiliates had in the past, at the time JMW was unaware of the gross mistake Defendant had made in its representation of JMW." (Matthew Baron aff, if 30). Based on the foregoing, an account stated has been established (Mintz & Gold LLP v Daibes, 125 AD3d 488, 489-490 [1st Dept 2015]). Accordingly, defendant's motion for summary judgment is granted in favor of defendant and against plaintiff in the amount of $55,885.82, with interest thereon from August 21, 2017, together with costs and disbursements (Lapidus & Assoc., LLP v Elizabeth St., Inc., 92 AD3d 405, 405-406 [1st Dept 2012]). - 3. Breach of Contract Counterclaim This Court need not address the breach of contract counterclaim in light of the foregoing conclusion. -15- [*FILED: NEW YORK COUNTY CLERK 08/13/2018 09:48 AM 16] NYSCEF DOC. NO. 33 INDEX NO. 156352/2017 RECEIVED NYSCEF: 08/13/2018 III. Motion Sequence Number.002 Plaintiff seeks admission of Jay J. Rice, managing partner and co-founder of Nagel Rice LLP, pro hac vice. This application was granted without opposition in accordance with plaintiff's proposed order on March 12, 2018. IV. Conclusion Accordingly, it is ORDERED that defendant's motion for summary judgment is granted and the complaint is dismissed; and its further ORDERED that defendant's motion for summary judgment on its counterclaim is granted and the Clerk is directed to enter judgment in favor of defendant on its counterclaims and against plaintiff in the amount of $55,685.82, together with interest thereon from August 21, 2017, at the statutory rate, as calculated by the Clerk, together with costs and disbursements to be taxed by the Clerk upon submission of an appropriate bill of costs; and it is further ORDERED that plaintiff's motion seeking admission of Jay J. Rice pro hac vice is granted. The foregoing constitutes the decision and order of this Court: Dated: August 10, 2018 ENTER:~ -16-

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