| Kramer Levin Naftalis & Frankel LLP v Canal Jean Co., Inc. |
| 2010 NY Slip Op 04434 [73 AD3d 604] |
| May 25, 2010 |
| Appellate Division, First Department |
| Kramer Levin Naftalis & Frankel LLP, Appellant, v CanalJean Co., Inc., et al., Respondents. |
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Order, Supreme Court, New York County (Edward H. Lehner, J.), entered December 1,2009, which, to the extent appealed from, denied plaintiff's motion for summary judgment on itscauses of action for account stated, unanimously reversed, on the law, with costs, and the motiongranted as to each such claim against defendants. The Clerk is directed to enter judgmentaccordingly.
Defendants' statements that they made oral protests about the invoices in question duringvarious meetings with plaintiff in March 2008 are facially insufficient to establish that theyprotested the invoices (Duane MorrisLLP v Astor Holdings Inc., 61 AD3d 418, 419 [2009]). Indeed, these statements arecontradicted by the fact that defendants made partial payments on the invoices (see Zanani v Schvimmer, 50 AD3d445 [2008]). Nor does plaintiff's failure to provide a written retainer agreement, as requiredby 22 NYCRR 1215.1, bar its claims for account stated (see Miller v Nadler, 60 AD3d 499, 500 [2009]). Plaintiff'smathematical error in its affidavits on the motion (an error in defendants' favor) is also not fatalto its claims, since the invoices themselves are fully consistent and provide a single total for thevarious claims (see Sisters of Charity Hosp. of Buffalo v Riley, 231 AD2d 272, 282-283[1997]).
Although no cause of action for account stated is pleaded against R&R in the complaint, thisomission is not a bar to summary judgment because we find that the evidence necessary to [*2]substantiate the claim is in the record. Further, plaintiff made theargument to the motion court and defendants have not been prejudiced (see Weinstock vHandler, 254 AD2d 165, 166 [1998]). Concur—Gonzalez, P.J., Saxe, Nardelli,McGuire and Moskowitz, JJ. [Prior Case History: 2009 NY Slip Op 32793(U).]