| Antokol & Coffin v Myers |
| 2011 NY Slip Op 06051 [86 AD3d 876] |
| July 28, 2011 |
| Appellate Division, Third Department |
| Antokol & Coffin, Now Known as Antokol, Reisman & Coffin,Respondent, v Nancy E. Myers, Appellant. |
—[*1] Mitch Kessler, Cohoes, and Corrigan, McCoy & Bush, P.L.L.C., Rensselaer (Scott W. Bushof counsel), for respondent.
Spain, J. Appeals (1) from a judgment of the Supreme Court (Catena, J.), entered December16, 2009 in Schenectady County, upon a decision of the court in favor of plaintiff, and (2) froman order of said court, entered June 16, 2010 in Schenectady County, which partially denieddefendant's motion to settle the record on appeal.
Plaintiff, a law firm in the City of Schenectady, Schenectady County, commenced this actionseeking to recover $59,870.36 in legal fees allegedly incurred by defendant in connection withplaintiff's representation of her in a divorce action, concluded now over a decade ago (Myersv Myers, 255 AD2d 711, 712 [1998]). Defendant counterclaimed seeking $1.3 million indamages for the alleged malpractice of one of plaintiff's principal attorneys, Richard Antokol.Supreme Court (Kramer, J.) granted plaintiff's motion to dismiss the malpractice counterclaimand, following a 2004 jury trial, entered judgment for plaintiff (Antokol & Coffin v Meyers, 30 AD3d843, 844-845 [2006]). On appeal, this Court affirmed the dismissal of the malpracticecounterclaim, but reversed the judgment based on trial error (id. at 849).
Upon remittal, a nonjury trial was held before Supreme Court (Catena, J.) at which defendantproceeded pro se. Finding that plaintiff established an account stated, the court awarded plaintiff$55,806.92, plus $67,518.19 in interest. Defendant appeals and, while [*2]perfecting the appeal, moved in Supreme Court to permit her toinclude several documents in the record on appeal that had not been introduced at the trial. Thecourt granted the motion with respect to four documents that plaintiff consented to include in therecord and otherwise denied the motion. Defendant now also appeals from that order. We affirmboth the judgment and the order.
" 'An account stated is an agreement between parties to an account based upon priortransactions between them with respect to the correctness of the account items and balance due' "(J.B.H., Inc. v Godinez, 34 AD3d873, 874 [2006], quoting Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869[1993], lv denied 82 NY2d 660 [1993]). An attorney can recover fees on an accountstated "with proof that a bill . . . was issued to a client and held by the client withoutobjection for an unreasonable period of time" (O'Connell & Aronowitz v Gullo, 229AD2d 637, 638 [1996], lv denied 89 NY2d 803 [1996]).
At trial, plaintiff introduced evidence of a retainer agreement between Antokol and defendantas well as unpaid invoices for legal fees dated between September 1995 and December 1996.Antokol testified that these invoices were ordinarily sent to defendant on a monthly basis and thatdefendant did not object to the bills until plaintiff commenced this action. Defendant testifiedthat she did not remember receiving monthly bills but, in her prior deposition testimony,acknowledged that she thought she had received a bill most months. Although defendant claimedto have had "constant conversations about the bills" with Antokol, and Antokol admitted that hemade efforts to get her to pay, including offering a 10% discount in February 1996, he testifiedthat defendant never offered a reason for her refusal to pay the bills. Indeed, with the exception ofone specific objection to work completed by one of Antokol's colleagues, which defendantultimately agreed to pay, defendant did not claim to have made objections to any specific bill,despite the language at the end of each bill stating, "The above information will be deemedcorrect unless objection is made within 30 days." Further, defendant admittedly made no writtenobjections to the bills. Under these circumstances, we agree with Supreme Court that defendant'sgeneral claims of verbal refusals to pay did not constitute a specific objection sufficient to defeatplaintiff's cause of action for an account stated (see Darby & Darby v VSI Intl., 95 NY2d308, 315 [2000]; J.B.H., Inc. v Godinez, 34 AD3d at 875-876; PPG Indus. v A.G.P.Sys., 235 AD2d 979, 980 [1997]; see also Zanani v Schvimmer, 50 AD3d 445, 446 [2008]).
Next, we find no error in Supreme Court's evidentiary ruling precluding defendant fromincluding in the record on appeal certain documents not made a part of the record at trial.Specifically, defendant argues that Supreme Court should have considered additional invoicesand a "Consent to Change Attorney" form. The trial court is the "final arbiter of the record" andits settlement of the record should not be disturbed absent an abuse of discretion (People v LaMotte, 276 AD2d 931, 932 [2000]; see CPLR 5525 [c]; Matter of BonnieRR., 141 AD2d 931, 932 [1988]). Here, although defendant objected to the inclusion ofplaintiff's invoices at trial on the basis that certain invoices had been omitted, she failed toarticulate the relevance of the omitted documents. Indeed, because plaintiff specifically limitedits recovery to counsel fees billed after August 1995, after the parties had entered into a retaineragreement, and the omitted invoices were not pertinent to this period of time, they did not formthe basis for the debt underlying this action and, thus, Supreme Court did not abuse its discretionin declining to include them in the record on appeal (see Matter of De Cotis v Malinoski,252 AD2d 646, 647 [1998]; Hodge v LoRusso, 181 AD2d 1009 [1992]).[*3]
Even were defendant correct in arguing that an invoiceissued in December 1993 and the consent to change attorney form could demonstrate thatplaintiff began to represent her in December, rather than November, of 1993 as found bySupreme Court, we nevertheless hold that the court properly excluded these documents from therecord. Defendant asserts that the date the representation began is relevant to whether plaintiffwas bound to comply with 22 NYCRR part 1400, which requires an attorney who undertakes torepresent a client in a matrimonial action on or after November 30, 1993 to prepare and execute awritten retainer agreement and provide a client with a statement of client rights (see 22NYCRR 1400.1, 1400.2, 1400.3). Here, defendant did not sign a retainer agreement andacknowledge receipt of her Statement of Client's Rights and Responsibilities until May 1995, butbecause plaintiff does not seek to recover fees billed before September 1995, whethercompliance with 22 NYCRR part 1400 was necessary before that time is irrelevant. We haveconsidered defendants's other procedural arguments and reject them, finding in all instances thatplaintiff substantially complied with 22 NYCRR part 1400 (see Granato v Granato, 75 AD3d 434, 434-435 [2010]; Riley v Coughtry, 13 AD3d 703,704 [2004]; Matter of Wapner,Koplovitz & Futerfas v Solomon, 7 AD3d 914, 915-916 [2004]).
We will not address defendant's contention that Supreme Court erred in dismissing hermalpractice counterclaim as we have previously affirmed dismissal of this claim (30 AD3d at845-846; see State Bank of Albany v McAuliffe, 108 AD2d 979, 980-981 [1985], lvsdenied 65 NY2d 603, 741 [1985]). Nor are we persuaded that defendant was prejudiced byreferences to the dismissal of her malpractice claim at trial. It is evident from the record thatSupreme Court properly considered the quality of Antokol's work in the context of establishingthe reasonableness of the sought counsel fees, notwithstanding its refusal to permit defendant torelitigate her malpractice claim (cf. 30 AD3d at 849).
Turning to the adequacy of the services billed for, we agree with Supreme Court that therecord demonstrates that plaintiff provided competent representation in a difficult matrimonialmatter. Antokol's failure to establish grounds for divorce in defendant's favor, albeit clearly apoint of frustration for defendant, was irrelevant, as fault did not affect the equitable distributionof marital assets (see Howard S. vLillian S., 14 NY3d 431, 435-436 [2010]). Defendant's assertions that Antokol shouldhave presented expert testimony to increase her share of the marital estate and that he was notprepared for trial are counterbalanced by record evidence that Antokol's decisions were part ofhis trial strategy and his claims that defendant's refusal to follow his advice at times interferedwith his ability to achieve better results for her. In sum, the record evidence fully supportsSupreme Court's finding that the alleged inadequacies of Antokol's representation are insufficientto undermine plaintiff's right to be paid for its services (see Matter of Wapner, Koplovitz &Futerfas v Solomon, 7 AD3d at 916).
Finally, we reject defendant's contention that she was entitled to a subpoena seekingAntokol's bar admissions records from this Court, as we hold that Antokol's sworn testimony anddocumentary exhibits adequately established that he is an attorney authorized to practice law inNew York State.
Peters, J.P., Lahtinen, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment andorder are affirmed, without costs.