| Pryor & Mandelup, LLP v Sabbeth |
| 2011 NY Slip Op 01635 [82 AD3d 731] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Pryor & Mandelup, LLP, Respondent, v Stephen J. Sabbethet al., Appellants. |
—[*1] Pryor & Mandelup, LLP, Westbury, N.Y. (Marc A. Stein of counsel), respondent prose.
In an action, inter alia, to recover damages for breach of contract and on an account stated forlegal fees, the defendants appeal from (1) an order of the Supreme Court, Nassau County(Iannacci, J.), entered October 28, 2009, which granted those branches of the plaintiff's motionwhich were for summary judgment on the first cause of action against the defendant Stephen J.Sabbeth to recover damages for breach of an oral contract and on the fourth cause of actionagainst the defendant Spectrum Resources, Ltd., formerly known as Sabbeth Industries, Ltd., torecover on an account stated for legal fees and (2) a judgment of the same court dated November2, 2009, which, upon the order, is in favor of the plaintiff and against the defendant Stephen J.Sabbeth on the first cause of action in the principal sum of $160,000, and in favor of the plaintiffand against the defendant Spectrum Resources, Ltd., formerly known as Sabbeth Industries, Ltd.,on the fourth cause of action in the principal sum of $42,652.65.
Ordered that the appeal from the order is dismissed, without costs or disbursements; and it isfurther,
Ordered that the judgment is modified, on the law, by deleting the first decretal paragraphthereof awarding damages on the first cause of action in the principal sum of $160,000; as somodified, the judgment is affirmed, without costs or disbursements, that branch of the plaintiff'smotion which was for summary judgment on the first cause of action is denied, the first cause ofaction is severed, and the order is modified accordingly.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241 [1976]). The issues raised on the appeal from the order are brought up for review andhave been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The plaintiff, a law firm, established its prima facie entitlement to judgment as a matter oflaw on its first cause of action to recover damages for breach of an oral contract, by submittingthe affirmation of Robert L. Pryor, a partner of the plaintiff, stating that the defendant Stephen J.Sabbeth promised to pay the plaintiff $160,000 if he recovered on a certain fire insurance policy.In opposition to [*2]the plaintiff's prima facie showing, thedefendants raised a triable issue of fact by submitting Sabbeth's affidavit, wherein he deniedmaking that promise. "On a motion for summary judgment the court must not weigh thecredibility of witnesses unless it clearly appears that the issues are feigned and not genuine" and"[a]ny conflict in the testimony or evidence presented merely raise[s] an issue of fact" (6243 Jericho Realty Corp. v AutoZone,Inc., 27 AD3d 447, 449 [2006]; see also Chase v Skoy, 146 AD2d 563 [1989]).Therefore, the Supreme Court should have denied that branch of the plaintiff's motion which wasfor summary judgment on its first cause of action to recover damages for breach of an oralcontract.
The plaintiff demonstrated its prima facie entitlement to judgment as a matter of law on itsfourth cause of action based upon an account stated for legal fees by submitting evidence "thatthe defendants received and retained, without objection, the invoices that the plaintiff sent themseeking payment for professional services rendered" (Thaler & Gertler v Weitzman, 282AD2d 522, 523 [2001]; see Ziskin LawFirm, LLP v Bi-County Elec. Corp., 43 AD3d 1158, 1159 [2007]; Sullivan v REJCorp., 255 AD2d 308 [1998]; Werner v Nelkin, 206 AD2d 422, 422-423 [1994]). Inopposition, the defendants failed to raise a triable issue of fact. Therefore, the Supreme Courtproperly granted that branch of the plaintiff's motion which was for summary judgment on itsfourth cause of action based upon an account stated for legal fees. Covello, J.P., Eng, Chambersand Hall, JJ., concur.