| Shelly v Skief |
| 2010 NY Slip Op 04358 [73 AD3d 1016] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Philip Shelly, Appellant, v Allen Skief,Respondent. |
—[*1]
In an action to recover fees for legal services rendered, the plaintiff appeals from so much ofan order of the Supreme Court, Westchester County (Lefkowitz, J.), entered July 14, 2009, asdenied that branch of his motion which was for summary judgment on his first cause of actionfor an account stated in the sum of $38,000.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
"An account stated assumes the existence of some indebtedness between the parties, or anexpress agreement to treat a statement of debt as an account stated" (Simplex Grinnell v Ultimate Realty,LLC, 38 AD3d 600, 600 [2007]). Whether the assent of the recipient of a bill for legalservices may be implied from all the circumstances presented is ordinarily a question of fact (see Arrow Empl. Agency v David RosenBakery Supplies, 2 AD3d 762, 762-763 [2003]; Yannelli, Zevin & Civardi vSakol, 298 AD2d 579, 580 [2002]; Legum v Ruthen, 211 AD2d 701, 703 [1995]).Here, the evidence submitted by the plaintiff raises a triable issue of fact as to whether thedefendant assented to the plaintiff's bill for legal services (see Arrow Empl. Agency v DavidRosen Bakery Supplies, 2 AD3d at 762-763; Yannelli, Zevin & Civardi v Sakol, 298AD2d at 580; Herrick, Feinstein v Stamm, 297 AD2d 477 [2002]). Accordingly, theplaintiff failed to establish his prima facie entitlement to judgment as a matter of law (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
The plaintiff's remaining contentions are without merit.
Therefore, the Supreme Court correctly denied that branch of the plaintiff's motion whichwas for summary judgment on his first cause of action for an account stated. Skelos, J.P.,Angiolillo, Leventhal and Roman, JJ., concur.