| Landa v Blocker |
| 2011 NY Slip Op 00191 [80 AD3d 570] |
| January 11, 2011 |
| Appellate Division, Second Department |
| Jay Landa, Respondent, v Lynn Blocker,Appellant. |
—[*1] Jay Landa, Garden City, N.Y., respondent pro se; L'Abbate, Balkin, Colavita & Contini, LLP,Garden City, N.Y. (Jacqueline Cabrera and Anthony P. Colavita of counsel), for respondent on thecounterclaims (one brief filed).
In an action, inter alia, to recover on an account stated, in which the defendant counterclaimed,among other things, to recover damages for legal malpractice, the defendant appeals (1) from an orderof the Supreme Court, Nassau County (Murphy, J.), dated April 13, 2009, which granted the plaintiff'smotion for summary judgment on the first cause of action of the amended complaint and to strike heraffirmative defenses, granted that branch of the plaintiff's separate motion which was for summaryjudgment dismissing her counterclaims, and denied her cross motion for summary judgment dismissingthe amended complaint, (2) from a judgment of the same court dated May 13, 2009, which, upon theorder dated April 13, 2009, is in favor of the plaintiff and against her in the principal sum of$193,525.40 and dismissing the counterclaims, and (3), as limited by her brief, from so much of anorder of the same court dated August 17, 2009, as denied that branch of her motion which was forleave to renew her cross motion and her opposition to the plaintiff's motions. Application by thedefendant for leave to appeal to the Court of Appeals, in the event that the judgment and the orders areaffirmed.
Ordered that the appeal from the order dated April 13, 2009, is dismissed, without costs ordisbursements; and it is further,
Ordered that the appeal from so much of the order dated August 17, 2009, as denied that branchof the defendant's motion which was for leave to renew her cross motion and her opposition to theplaintiff's motion for summary judgment on the first cause of action of the amended complaint and tostrike her affirmative defenses is dismissed as academic, without costs or disbursements, in light of ourdetermination on the appeal from the judgment; and it is further,
Ordered that the judgment is modified, on the law, by deleting the provision thereof awarding theplaintiff the principal sum of $193,525.40; as so modified, the judgment is affirmed, without costs ordisbursements, the plaintiff's motion for summary judgment on the first cause of action of the amendedcomplaint is denied, and the order dated April 13, 2009, is modified accordingly; and it is further,[*2]
Ordered that the order dated August 17, 2009, is affirmedinsofar as reviewed, without costs or disbursements; and it is further,
Ordered that the application is denied.
The appeal from the order dated April 13, 2009, must be dismissed because the right of directappeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from that order are brought up for review onthe appeal from the judgment (see CPLR 5501 [a] [1]).
The plaintiff, an attorney, was retained by the defendant to represent her in a matrimonial action,which concluded in a judgment of divorce resolving the issues of equitable distribution, maintenance,custody, and child support. The plaintiff commenced this action, inter alia, to recover the legal feescharged in the matrimonial action based on the theory of an account stated. The defendant, amongother things, asserted a counterclaim to recover damages for legal malpractice.
The Supreme Court properly denied the defendant's motion for summary judgment dismissing theamended complaint, but it should also have denied that branch of the plaintiff's motion which was forsummary judgment on the first cause of action to recover on an account stated.
The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the firstcause of action by tendering invoices for services rendered prior to December 5, 2006, setting forth hishourly rate, the billable hours expended, and the particular services rendered, and establishing that thedefendant signed such invoices, failed to timely object to the invoices, and made partial paymentsthereon (see Landa v Dratch, 45 AD3d646, 648 [2007]; Landa v Sullivan, 255 AD2d 295 [1998]). In opposition, however, thedefendant submitted her own affidavit, which was sufficient to raise a triable issue of fact as to whethershe acquiesced in the correctness of the invoices (see Interman Indus. Prods. v R. S. M. ElectronPower, 37 NY2d 151, 153-154 [1975]; Rodkinson v Haecker, 248 NY 480, 485[1928]). The defendant asserted in her affidavit that she signed the invoices as "approved," not becauseshe actually agreed that the amounts reflected therein were correct, but because she was told that nowork would be done on her case unless she signed the invoices. For example, the defendant averredthat, during a conference at the plaintiff's office, the plaintiff produced a number of unsigned billingstatements and told the defendant that "the conference was not going to proceed until [she] signed thebilling statements." According to the defendant, she signed the billing statements, but "[t]here was nointent on [her] part to accept the billing so that it could never, ever, be challenged in the future."
We note that the plaintiff's alleged refusal to proceed with his representation of the defendant unlessthe defendant signed the billing statements "would not constitute duress by reason of which [thedefendant] would be entitled to have the written statement invalidated" (Miller v Storer, 1AD2d 956 [1956], affd 2 NY2d 815 [1957]). Here, however, the defendant does not seek toinvalidate or repudiate either the billing statements or the retainer agreement between the parties.Indeed, unlike the client in Miller, the defendant in this case has not asserted a counterclaim forrescission of any agreement between the parties. Rather, the defendant seeks only to defeat that branchof the plaintiff's motion which for summary judgment on his cause of action to recover on an accountstated by raising a triable issue of fact as to whether she agreed to or acquiesced in the correctness ofthe invoices. The facts asserted in the defendant's affidavit are sufficient to raise a triable issue of fact asto whether her acts of signing the invoices "were, in fact, acquiescence to their correctness" (Ween v Dow, 35 AD3d 58, 62[2006]).
The Supreme Court properly granted that branch of the plaintiff's separate motion which was forsummary judgment dismissing the defendant's counterclaims, among other things, to recover damagesfor legal malpractice. Although an attorney's affirmation may serve as an expert opinion establishing "[a]basis for judging the adequacy of professional service" (Zasso v Maher, 226 AD2d 366, 367[1996]), here, in opposition to the plaintiff's prima facie showing of entitlement to judgment as a matterof law, the attorney's affirmation submitted by the defendant was insufficient to raise a triable issue offact as to whether the plaintiff was negligent in his representation of her in the underlying matrimonialaction (see Scartozzi v Potruch, 72AD3d 787, 788-789 [2010]). Moreover, in opposition to the plaintiff's prima facie showing, thedefendant failed to raise triable issues of fact with respect to her other counterclaims.[*3]
The parties' remaining contentions are either without merit ornot properly before this Court. Skelos, J.P., Angiolillo, Hall and Lott, JJ., concur.