| Geron v DeSantis |
| 2011 NY Slip Op 08483 [89 AD3d 603] |
| November 22, 2011 |
| Appellate Division, First Department |
| Yann Geron, as Chapter 7 Trustee of the Estate of Thelen LLP,Respondent, v Steven DeSantis, Appellant. |
—[*1] Yudin & Yudin, PLLC, New York (Steven G. Yudin of counsel), for respondent.
Judgment, Supreme Court, New York County (Marylin G. Diamond, J.), entered January 7,2011, awarding plaintiff the aggregate amount of $523,611.36, unanimously affirmed, withoutcosts. Appeal from order, same court and Justice, entered December 2, 2010, which, insofar asappealed from as limited by the briefs, granted plaintiff's motion for summary judgment on hisclaim for an account stated, unanimously dismissed, without costs, as subsumed in the appealfrom the judgment.
Plaintiff established prima facie entitlement to judgment as a matter of law on his claim ofaccount stated by establishing that the law firm generated detailed monthly invoices and mailedthem to defendant on a regular basis in the course of its business (see Berkman Bottger & Rodd, LLP vMoriarty, 58 AD3d 539 [2009]; American Express Centurion Bank v Williams, 24 AD3d 577[2005]).
Defendant's allegations of oral objections lack the specificity to raise issues of fact as to anaccount stated (see Berkman, 58 AD3d at 539; Zanani v Schvimmer, 50 AD3d 445, 446 [2008]). Defendant'sreliance on his letter of September 2, 2008, in which he referred to "concerns" about the firm'sbills, is misplaced, as the letter offers no detail as to the nature of those concerns. The letter alsocame long after defendant's receipt of the majority of the firm's bills, and postdated, by more thanone year, an earlier letter written by defendant in June 2007, in which he acknowledged a largeoutstanding balance and confirmed that he would pay that sum "in full without defense of anykind" upon receipt of certain monies from his mother's estate.
Defendant further expressed his desire for the firm to continue representing him, andacknowledged that fees for the firm's continuing services "may be substantial." Defendant'scontention that this letter raises "unanswered questions of fact" as to whether it was drafted bythe firm and signed by defendant "perhaps under duress or pressure of some sort" is unpreserved,as he did not raise this argument below (see Logiudice v Logiudice, 67 AD3d 544, 545 [2009]). In anyevent, defendant's argument is speculative and lacks support in the record.
We have considered and rejected defendant's contention that there are inconsistencies in thesums sought by plaintiff in his account stated claim. We also reject defendant's claim that thesummary judgment motion was premature in light of the fact that discovery had not yet been[*2]completed. We find that there is no need for further discoveryas to whether defendant ever protested the firm's bills, since that is "a matter within [his] ownknowledge" (Duane Morris LLP v AstorHoldings Inc., 61 AD3d 418, 419 [2009]). Concur—Moskowitz, J.P., Renwick,DeGrasse, Abdus-Salaam and RomÁn, JJ.