| Jeffrey L. Rosenberg & Assoc., LLC v Lajaunie |
| 2008 NY Slip Op 06963 [54 AD3d 813] |
| September 16, 2008 |
| Appellate Division, Second Department |
| Jeffrey L. Rosenberg & Associates, LLC,Respondent, v Philippe Lajaunie et al., Appellants. |
—[*1] Jeffrey L. Rosenberg & Associates, LLC, Old Wesbury, N.Y., respondent pro se.
In an action, inter alia, to recover fees for legal services rendered, the defendants appeal fromso much of an order of the Supreme Court, Nassau County (Parga, J.), dated May 10, 2007, as (a)denied that branch of their motion which was to extend their time to demand a change in venue,(b) granted that branch of the plaintiff's motion which was for summary judgment on the issue ofliability on the first through thirteenth causes of action, and (c), in effect, denied their crossmotion for summary judgment, inter alia, dismissing the first through third and the fourththrough tenth causes of action insofar as asserted against the defendant Philippe Lajaunie in hispersonal capacity.
Ordered that the order is affirmed insofar as appealed from, with costs.
By summons and complaint filed January 20, 2005 the plaintiff law firm commenced thisaction against Philippe Lajaunie and five corporate entities he allegedly controls, seeking torecover unpaid legal fees, accrued interest, and collection costs arising from legal servicesrendered in connection with four matters, hereinafter referred to, respectively, as the Le MaraisDC Matter, the Les Halles DC Matter, the Reglat Matter, and the Reorganization Matter. Thecomplaint asserted 14 causes of action. The first through thirteenth causes of action to recoverdamages for breach of contract and on an account stated relate to each of the above matters. Thefourteenth cause of action seeks payment of fees and costs allegedly incurred by the plaintiff inattempting to collect the debt.
In response to the plaintiff's showing of its entitlement to summary judgment on the issue ofliability on the first through thirteenth causes of action, the defendant failed to raise a triableissue of fact (see Mintz & Gold, LLP vHart, 48 AD3d 526 [2008]; Ziskin Law Firm, LLP v Bi-County Elec. [*2]Corp., 43 AD3d 1158 [2007]; Drug Guild Distribs. v3-9 Drugs, 277 AD2d 197 [2000]; see generally Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]).
Contrary to the defendants' contention, the first three causes of action are not barred by theapplicable six-year statute of limitations (see CPLR 213 [5]). Even assuming, as thedefendants assert, that the statute of limitations as to these causes of action would have runsometime in 2004, the defendants signed a subsequent retainer agreement (hereinafter thereorganization retainer agreement) in December 2003 in which the defendants explicitlyacknowledged their obligation to pay the existing debt for past services rendered and evincedtheir intent to pay it (hereinafter the acknowledgment language). This was sufficient to restart therunning of the statute of limitations for six years from that date (see General ObligationsLaw § 17-101; Lew Morris Demolition Co. v Board of Educ. of City of N.Y., 40NY2d 516, 521 [1976]; Banco do Brasil v State of Antigua & Barbuda, 268 AD2d 75[2000]; Anonymous v Anonymous, 172 AD2d 285 [1991]; see also Sullivan v Troser Mgt., Inc.,15 AD3d 1011, 1011-1012 [2005]; Fade v Pugliani/Fade, 8 AD3d 612, 613 [2004]; Erdheim vGelfman, 303 AD2d 714, 714-715 [2003]). Contrary to the defendants' contentions, theunsupported allegation of Lajaunie in his affidavit, that the plaintiff "slipped" theacknowledgment language into the reorganization retainer agreement without his knowledge orthat of his partner, is insufficient to raise a triable issue of fact regarding the efficacy of thereorganization retainer agreement (see Cohen v Cerier, 243 AD2d 670, 672 [1997];Superior Realty Corp. v Cardiff Realty, 126 AD2d 633 [1987]; Most v Monti, 91AD2d 606 [1982]).
Contrary to the defendants' contention, the reorganization retainer agreement, as well asnumerous letters and bills, also established the plaintiff's entitlement to judgment as a matter oflaw on the eighth, ninth, and tenth causes of action regarding Lajaunie's personal liability forpayment for services rendered with respect to the Reglat Matter. In response to this showing, thedefendant Lajaunie failed to raise a triable issue of fact.
Moreover, the unsubstantiated allegations in Lajaunie's affidavit, that Jeffrey Rosenberg'sbehavior caused the deal on the Le Marais DC Matter to fall through, were insufficient to raiseany questions of fact with respect to the first, second, and third causes of action for payment forservices rendered on the Le Marais DC Matter (see Zuckerman v City of New York, 49NY2d 557 [1980]; Goldstein v County of Suffolk, 300 AD2d 441, 442 [2002]). This isespecially so in view of Lajaunie's own statement, in a letter to Rosenberg dated November 9,2001, that the defendants "acknowledge the accuracy of the legal time and the excellence of yourservices" (see Spancrete Northeast v Elite Assoc., 184 AD2d 562 [1992]).
The Supreme Court providently exercised its discretion in denying the defendants' motion toextend their time to demand a change of venue. Since the defendants failed to serve a timelydemand for a change of venue to New York County, and failed to make a motion for that reliefwithin the statutory 15-day period (see CPLR 511 [b]), they were not entitled, as of right,to a change of venue to New York County (see Joyner-Pack v Sykes, 30 AD3d 469 [2006]; Harleysville Ins. Co. v Ermar Painting &Contr., Inc., 8 AD3d 229, 230 [2004]; Runcie v Cross County Shopping Mall,268 AD2d 577 [2000]). Thus, their motion " 'became one addressed to the court's discretion'" (Obas v Grappell, 43 AD3d431, 432 [2007], quoting Callanan Indus. v Sovereign Constr. Co., 44 AD2d 292,295 [1974]). The record belies the defendants' assertion that their 10-month delay in moving for achange of venue was caused by "any willful omissions and misleading statements on theplaintiff's part" regarding its principal office (Horowicz v RSD Transp., 249 AD2d 511[1998]; see CPLR 503 [c]; cf. Philogene v Fuller Auto Leasing, 167 AD2d 178[1990]).[*3]
The defendants' remaining contentions are without merit.Lifson, J.P., Florio, Carni and Belen, JJ., concur.