| Ziskin Law Firm, LLP v Bi-County Elec. Corp. |
| 2007 NY Slip Op 06988 [43 AD3d 1158] |
| September 25, 2007 |
| Appellate Division, Second Department |
| Ziskin Law Firm, LLP, Respondent, v Bi-County ElectricCorp. et al., Appellants. |
—[*1] Ziskin Law Firm, LLP, Commack, N.Y. (Stacey E. Ziskin of counsel), respondent prose.
In an action to recover unpaid legal fees, the defendants appeal from (1) an order of theSupreme Court, Suffolk County, (Spinner, J.) dated April 25, 2006, which, inter alia, granted theplaintiff's motion to strike their answer for failure to comply with discovery requests, denied theircross motion for summary judgment dismissing the complaint, and granted the plaintiff's crossmotion for summary judgment, and (2) a judgment of the same court entered June 27, 2006,which, upon the order, is in favor of the plaintiff and against them in the principal sum of$19,393.93. The defendants' notice of appeal from the order is deemed also to be a notice ofappeal from the judgment (see CPLR 5501 [c]).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d [*2]241, 248 [1976]). The issues raised on the appeal fromthe order are brought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
The record demonstrates that the defendants failed without reasonable excuse to comply withmultiple discovery orders requiring them to appear for a deposition and to provide substantiveresponses to proper interrogatories, and that the Supreme Court providently exercised itsdiscretion in granting the plaintiff's motion to strike the answer and for other relief pursuant toCPLR 3126 (see Royal Caterers, LLC vMarine Midland, 8 AD3d 549 [2004]; Alizio v Alizio, 300 AD2d 515 [2002];Nowak v Veira, 289 AD2d 383 [2001]).
Further, there was no merit to the defendants' cross motion for summary judgment dismissingthe complaint on the ground that the plaintiff law firm had not provided a written retaineragreement or letter of engagement, in violation of 22 NYCRR 1215.1, since the defendantretained the law firm before that rule became effective on March 4, 2002 (see Seth Rubenstein, P.C. v Ganea, 41AD3d 54 [2007], citing Glazer v Jack Seid, Sylvia Seid Revocable Trust,2003 NY Slip Op 51416[U] [Dist Ct, Nassau County, Oct. 23, 2003]. Moreover, upon review ofthe evidence submitted by the plaintiff in opposition to the defendants' cross motion for summaryjudgment and in support of its cross motion for summary judgment, the Supreme Court properlygranted summary judgment in favor of the plaintiff (see CPLR 3212 [b]; 2215). Theplaintiff demonstrated its prima facie entitlement to judgment as a matter of law on its cause ofaction based upon an account stated by submitting evidence "that the defendants received andretained, without objection, the invoices that the plaintiff sent them seeking payment forprofessional services rendered" (Thaler & Gertler v Weitzman, 282 AD2d 522, 523[2001]; see Sullivan v REJ Corp., 255 AD2d 308 [1998]; Werner v Nelkin, 206AD2d 422, 422-423 [1994]). Even assuming that the defendants' defenses had not been strickendue to their failure to comply with discovery, their unsupported and conclusory assertions thatthey did not intend to agree to a statement of account and believed unspecified services were notrendered failed to raise a triable issue of fact warranting denial of the plaintiff's cross motion forsummary judgment (see Thaler & Gertler v Weitzman, 282 AD2d 522 [2001],supra; Sullivan v REJ Corp. 255 AD2d 308 [1998], supra; Werner vNelkin, 206 AD2d 422 [1994], supra). Spolzino, J.P., Krausman, Angiolillo andMcCarthy, JJ., concur.