| Zanani v Schvimmer |
| 2008 NY Slip Op 03317 [50 AD3d 445] |
| April 15, 2008 |
| Appellate Division, First Department |
| Doron Zanani, Appellant, v Miriam Schvimmer et al.,Respondents. |
—[*1] Barry & Associates, Brooklyn (Barry R. Feerst of counsel), for respondents.
Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered April 4, 2006,which, insofar as appealed from, denied plaintiff's motion for summary judgment seekingrecovery of unpaid legal fees, unanimously reversed, on the law, with costs, summary judgmentawarded to plaintiff, and the matter remanded for further proceedings to determine whetherdefendants, as claimed in their cross motion for partial summary judgment, are entitled to a setoffin the amount of $6,740 for amounts not properly credited to their account.
Plaintiff's motion for summary judgment should have been granted, because defendantsfailed to raise a triable issue of fact as to whether plaintiff, the attorney who represented them ina partition action, established an account stated by rendering bills to them to which they failed toobject. Defendant Miriam Schvimmer's assertion that she orally objected to the bills isinsufficient because she fails to state when she objected or the specific substance of theconversations in which the objections were made (see Levisohn, Lerner, Berger & Langsam vGottlieb, 309 AD2d 668 [2003], lv denied 1 NY3d 509 [2004]; Fink,Weinberger, Fredman, Berman & Lowell v Petrides, 80 AD2d 781 [1981], lvdismissed 53 NY2d 1028 [1981]). Indeed, with respect to bills received by defendants afterplaintiff was terminated, Miriam Schvimmer does not even assert that she objected to the bills,only that she "discussed" plaintiff's outstanding fees with him and told him that when the matterwas concluded she would "address the issue with him." Furthermore, she failed to show that theinvoices were insufficiently itemized. Even if they were, that fact does not in itself prevent anaccount stated from being created (see Shea & Gould v Burr, 194 AD2d 369, 371[1993]). Moreover, defendants' position that an account stated was not created because theydisputed the bills all along is contradicted by the fact that they made partial payment on asubstantial number of the bills rendered by plaintiff (see id.).
Notwithstanding our grant of summary judgment to plaintiff, we remand for a determinationas to whether defendants are entitled to a setoff for amounts alleged by them, in their crossmotion for partial summary judgment, to have been paid to plaintiff but not credited to them.However, the other sums for which defendants seek a credit in their cross motion are part [*2]of the account stated and, accordingly, these issues have necessarilybeen decided in plaintiff's favor. Concur—Mazzarelli, J.P., Saxe, Buckley and Catterson,JJ.