| Berkman Bottger & Rodd, LLP v Moriarty |
| 2009 NY Slip Op 00311 [58 AD3d 539] |
| January 22, 2009 |
| Appellate Division, First Department |
| Berkman Bottger & Rodd, LLP, Appellant, v StephanieO'Hara Moriarty, Respondent. |
—[*1] James T. Moriarty, New York, for respondent.
Order, Supreme Court, New York County (Leland G. DeGrasse, J.), entered January 9, 2008,which, in an action for unpaid legal fees, denied plaintiff law firm's motion for summaryjudgment on its first cause of action for account stated, unanimously reversed, on the law,without costs, and the motion granted. The Clerk is directed to enter judgment in plaintiff's favorin the amount of $83,150.53, with statutory interest from March 23, 2007.
Summary judgment on the account stated cause of action should have been granted.Plaintiff's procedural error in submitting an attorney's affirmation in support of its motion, asopposed to an affidavit as required by CPLR 2106, was timely remedied when the sameaffirmation was submitted in affidavit form in reply papers (see e.g. Wester v Sussman,304 AD2d 656 [2003], lv denied 100 NY2d 510 [2003]), and there is no indication thatdefendant client was prejudiced by the technical defect in opposing the motion.
Evidence in the form of detailed monthly invoices addressed to defendant, together withaffidavits submitted by plaintiff and defendant, indicating that the invoices were regularly andtimely forwarded to and received by defendant, established plaintiff's compliance with theretainer agreement's regular billing requirements. Defendant's contention that she often orallyobjected to the bills by making general complaints to plaintiff that the bills were high wasself-serving, not time specific, and otherwise contradicted by her actions in failing to availherself of the offered arbitration (see Darby & Darby v VSI Intl., 95 NY2d 308, 315[2000]; Manhattan Telecom. Corp. v Best Payphones, 299 AD2d 178 [2002], lvdenied 100 NY2d 507 [2003]). Furthermore, defendant's undated letter to the court,complaining that the bills were "too high" and that plaintiff continuously assured her that herhusband would have to pay the bills generated in the matrimonial action, was vague and belatedsince it appears to have been drafted months after plaintiff had moved to be relieved asdefendant's counsel. Concur—Tom, J.P., Andrias, Nardelli, Catterson and Moskowitz, JJ.