| Landa v Blocker |
| 2011 NY Slip Op 06370 [87 AD3d 719] |
| August 30, 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 onthe counterclaims (one brief filed).
Motion by the appellant, inter alia, for leave to reargue appeals from two orders of theSupreme Court, Nassau County (Murphy, J.), dated April 13, 2009, and August 17, 2009,respectively, and a judgment of the same court dated May 13, 2009, which were determined bydecision and order of this Court dated January 11, 2011.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
Ordered that those branches of the motion which are for leave to reargue are granted; and it isfurther,
Ordered that the motion is otherwise denied; and it is further,
Ordered that, upon reargument, the decision and order of this Court dated January 11, 2011(Landa v Blocker, 80 AD3d570 [2011]), is recalled and vacated, and the following decision and order is substitutedtherefor:
In an action, inter alia, to recover on an account stated, in which the defendantcounterclaimed, among other things, to recover damages for legal malpractice, the defendantappeals (1) from an order of the Supreme Court, Nassau County (Murphy, J.), dated April 13,2009, which granted the plaintiff's motion for summary judgment on the first cause of action ofthe amended complaint and to strike her affirmative defenses, granted that branch of theplaintiff's separate motion which was for summary judgment dismissing her counterclaims, anddenied her cross motion for summary judgment dismissing the amended complaint, (2) from ajudgment of the same court dated May 13, 2009, which, upon the order dated April 13, 2009, isin favor of the plaintiff and against her in the principal sum of $193,525.40 and dismissing thecounterclaims, and (3), as limited by her brief, from so much of an order of the same court datedAugust 17, 2009, as denied that branch of her motion which was for leave to renew her crossmotion and her opposition to the plaintiff's motions. Application by the defendant for leave toappeal to the Court of Appeals, in the event that [*2]the judgmentand the orders are affirmed.
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 thatbranch of the defendant's motion which was for leave to renew her cross motion and heropposition to the plaintiff's motion for summary judgment on the first cause of action of theamended complaint and to strike her affirmative defenses is dismissed as academic, without costsor disbursements, in light of our determination on the appeal from the judgment; and it is further,
Ordered that the judgment is modified, on the law, by deleting the provision thereofawarding the plaintiff the principal sum of $193,525.40; as so modified, the judgment isaffirmed, without costs or disbursements, those branches of the plaintiff's motion which were forsummary judgment on the first cause of action of the amended complaint and to strike the eighthaffirmative defense are denied, and the order dated April 13, 2009, is modified accordingly; andit is further,
Ordered that the order dated August 17, 2009, is affirmed insofar as reviewed, without costsor 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,39 NY2d 241, 248 [1976]). The issues raised on the appeal from that order are brought up forreview on the appeal from the judgment (see CPLR 5501 [a] [1]).
The plaintiff, an attorney, was retained by the defendant to represent her in a matrimonialaction, 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, torecover the legal fees charged in the matrimonial action based on the theory of an account stated.The defendant, among other things, asserted a counterclaim to recover damages for legalmalpractice.
The Supreme Court properly denied the defendant's motion for summary judgmentdismissing the amended complaint, but it should also have denied that branch of the plaintiff'smotion which was for summary judgment on the first cause of action to recover on an accountstated.
The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on thefirst cause of action by tendering invoices for services rendered prior to December 5, 2006,setting forth his hourly rate, the billable hours expended, and the particular services rendered, andestablishing that the defendant signed such invoices, failed to timely object to the invoices, andmade partial payments thereon (seeLanda v Dratch, 45 AD3d 646, 648 [2007]; Landa v Sullivan, 255 AD2d 295[1998]). In opposition, however, the defendant submitted her own affidavit, which was sufficientto raise a triable issue of fact as to whether she acquiesced in the correctness of the invoices(see Interman Indus. Prods. v R. S. M. Electron Power, 37 NY2d 151, 153-154 [1975];Rodkinson v Haecker, 248 NY 480, 485 [1928]). The defendant asserted in her affidavitthat she signed the invoices as "approved," not because she actually agreed that the amountsreflected therein were correct, but because she was told that no work would be done on her caseunless she signed the invoices. For example, the defendant averred that, during a conference atthe plaintiff's office, the plaintiff produced a number of unsigned billing statements and told thedefendant that "the conference was not going to proceed until [she] signed the billingstatements." 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 defendantunless the defendant signed the billing statements "would not constitute duress by reason [*3]of which [the defendant] would be entitled to have the writtenstatement invalidated" (Miller v Storer, 1 AD2d 956 [1956], affd 2 NY2d 815[1957]). Here, however, the defendant does not seek to invalidate or repudiate either the billingstatements or the retainer agreement between the parties. Indeed, unlike the client in Miller, thedefendant in this case has not asserted a counterclaim for rescission of any agreement betweenthe parties. Rather, the defendant seeks only to defeat that branch of the plaintiff's motion whichwas for summary judgment on his cause of action to recover on an account stated by raising atriable issue of fact as to whether she agreed to or acquiesced in the correctness of the invoices.The facts asserted in the defendant's affidavit are sufficient to raise a triable issue of fact as towhether her acts of signing the invoices "were, in fact, acquiescence to their correctness" (Ween v Dow, 35 AD3d 58, 62[2006]).
The Supreme Court also improperly granted that branch of the plaintiff's motion which wasto strike the eighth affirmative defense alleging that the fees in question were excessive. Theplaintiff failed to meet his prima facie burden of establishing his entitlement to judgment as amatter of law in connection with this affirmative defense (see Bomba v Silberfein, 238AD2d 261 [1997]). Accordingly, the Supreme Court should have denied that branch of theplaintiff's motion which was to strike the eighth affirmative defense alleging that the fees inquestion were excessive, without regard to the sufficiency of the defendant's opposition papers(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
However, the Supreme Court properly granted that branch of the plaintiff's separate motionwhich was for summary judgment dismissing the defendant's counterclaims, among other things,to recover damages for legal malpractice. Although an attorney's affirmation may serve as anexpert 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 primafacie showing of entitlement to judgment as a matter of law, the attorney's affirmation submittedby the defendant was insufficient to raise a triable issue of fact as to whether the plaintiff wasnegligent in his representation of her in the underlying matrimonial action (see Scartozzi v Potruch, 72 AD3d787, 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.
The parties' remaining contentions are either without merit or not properly before this Court.Skelos, J.P., Angiolillo, Hall and Lott, JJ., concur.