Trachtenberg Rodes & Friedberg, LLP v Rundell

[*1] Trachtenberg Rodes & Friedberg, LLP v Rundell 2018 NY Slip Op 50754(U) Decided on May 29, 2018 Supreme Court, New York County Reed, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 29, 2018
Supreme Court, New York County

Trachtenberg Rodes & Friedberg, LLP, Plaintiff,

against

Derek Rundell, Defendant.



652884/2017



For Plaintiff

Trachtenberg Rodes & Friedberg LLP

545 Fifth AvenueNew York, New York 10017

By: David Trachtenberg, Esq.

For Defendant

Derek Rundell

pro se
Robert R. Reed, J.

Plaintiff, pro se law firm Trachtenberg Rodes & Friedberg, LLP ("TR & F"), sues to collect unpaid legal fees and expenses stemming from its representation of defendant, Derek Rundell ("Rundell"). TR & F moves for summary judgment, pursuant to CPLR 3212, on its account stated cause of action. Rundell opposes arguing that plaintiff's legal services were negligent and its fees were excessive and unreasonable.

The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion (Alvarez v. Prospect Hospital, 68 NY2d 320). Thus, the moving party must tender sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Once that initial burden has been satisfied, the "burden of production" (not the burden of persuasion) shifts to the opponent, who must now come forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. The court's function on a motion for summary judgment is issue finding, rather than issue determination (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied (Stone v. Goodson, 8 NY2d 8; Sillman v. Twentieth Century-Fox Film Corp., supra.).

"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 the balance due, if any, in favor of one party or the other" (see Chisholm—Ryder Co. v. Sommer & Sommer, 70 AD2d 429, 431). To prevail on a cause of action for an account stated, the plaintiff must show "invoices, receipt by defendant, and lack of objection by [*2]defendant for a substantial period of time" (see L.E.K. Consulting LLC v. Menlo Capital Group, LLC, 148 AD3d 527, 528). Here, the complaint alleges that Rundell made partial payments for legal services, that TR & F provided an invoice for the outstanding balance, and no objection was received in a reasonable timeframe thereafter. In support of its motion for summary judgment, TR & F attaches the applicable retainer agreement and the invoices presented to Rundell. TR & F also submits an affidavit from named partner, David G. Trachtenberg, Esq., who attests, upon his personal knowledge, that the invoices remain unpaid, well past their due dates. Plaintiff, thus, makes a prima facie showing of entitlement to summary judgment on the account stated cause of action.

Rundell submits in opposition an assortment of documents which purport to answer the complaint and to cross-move to dismiss the complaint for lack of personal jurisdiction. Rundell's unnotarized and unsigned documents are not CPLR-compliant. Rundell has failed to submit admissible evidence to demonstrate the existence of a triable issue of fact, and, thus, his purported opposition is insufficient to rebut plaintiff's prima facie showing of entitlement to summary judgment.

Accordingly, it is

ORDERED that summary judgment is granted in favor of plaintiff and against defendant for the sum of $56,523.09, together with costs and disbursements as taxed by the Clerk, and the Clerk is directed to enter judgment accordingly.

In light of this, all other purported motions are denied as moot.

Dated: May 29, 2018

ENTER:

__________________________________

J.S.C.