| Levine v Harriton & Furrer, LLP |
| 2012 NY Slip Op 01401 [92 AD3d 1176] |
| February 23, 2012 |
| Appellate Division, Third Department |
| Lawrence M. Levine, Respondent, v Harriton & Furrer,LLP, Sued Herein as Herriton & Furrer, LLP, Appellant. |
—[*1] Peterson & Thomas, P.C., Round Lake (Thomas W. Peterson of counsel), forrespondent.
Garry, J. Appeal from an order of the Supreme Court (Nolan Jr., J.), entered April 12, 2011in Saratoga County, which, among other things, partially granted plaintiff's motion for summaryjudgment.
Plaintiff, a licensed professional engineer, was retained to provide services in connectionwith a personal injury claim in the Court of Claims against the State of New York arising froman alleged highway defect. The claim was subsequently transferred to defendant, a law firm inthe Village of Round Lake, Saratoga County, and plaintiff was again retained. The partiesinitially proceeded upon an oral agreement. In February 2006, plaintiff submitted a writtenretainer agreement to defendant setting forth a retainer fee and establishing hourly charges andfees, among other things. Defendant paid the retainer fee and, on the claimant's behalf, returnedthe agreement to plaintiff, without signature. Plaintiff subsequently provided services andsubmitted bills periodically to defendant. Defendant made payments through December 2007,when the trial was completed; thereafter, defendant made no further payments but did requestcontinuing services, which plaintiff provided. In May 2008, the Court of Claims rendered adetermination dismissing the claim upon the ground that negligence had not been proven.Plaintiff allegedly continued to submit invoices for payment of the outstanding balance duethrough October 2008, but received no response. After plaintiff's counsel contacted [*2]defendant, defendant responded in writing in November 2008,refusing to pay and alleging that the unfavorable determination of the claim had resulted fromplaintiff's professional malpractice.
Plaintiff thereafter commenced this action seeking to recover upon an account stated, breachof oral and written contracts, and unjust enrichment. Defendant joined issue and counterclaimedfor professional malpractice, negligence and breach of contract. Following discovery, plaintiffmoved for summary judgment and dismissal of the counterclaims, and defendant cross-movedfor dismissal of plaintiff's claims and summary judgment on the counterclaims. Supreme Court,among other things, dismissed the counterclaims, granted that part of defendant's motion seekingdismissal of the claim for breach of written contract, and granted summary judgment in plaintiff'sfavor on the remaining causes of action. Defendant appeals, and we affirm.
Supreme Court correctly dismissed defendant's counterclaims for failure to state a cause ofaction. The counterclaims were premised upon the theory that defendant was an intendedthird-party beneficiary of the November 2006 retainer agreement, by which plaintiff was toprovide engineering services on the claimant's behalf.[FN1]This theory required a showing that a valid contract existed, that it was intended to providedefendant with a benefit, and that the intended benefit was "sufficiently immediate, rather thanincidental," to support the assumption that defendant would be entitled to compensation if thebenefit was lost (Boyd v Hall, Ltd., 307 AD2d 624, 626 [2003] [internal quotation marksand citations omitted]; see Bonwell v Stone, 128 AD2d 1013, 1014 [1987]). "[T]he bestevidence of [such an intent] is to be found in the language of the contract itself" (BinghamtonMasonic Temple v City of Binghamton, 213 AD2d 742, 746 [1995], lv denied 85NY2d 811 [1995]; see IMSEngrs.-Architects, P.C. v State of New York, 51 AD3d 1355, 1357 [2008], lvdenied 11 NY3d 706 [2008]). Assuming without deciding that the retainer agreement was avalid contract between plaintiff and the claimant, defendant points to no language therein, nor toany other facts indicating that the agreement was intended to furnish defendant with any benefitbeyond that of the legal fees that might incidentally be gained upon an award in the claimant'sfavor. There is nothing to support the assumption of a duty to compensate defendant if these feeswere not gained; to the contrary, the agreement expressly provided that the parties' obligationswere "unrelated to the specific outcome or result with respect to the subject matter." Further, weagree with Supreme Court that any affirmative claim against plaintiff for professionalmalpractice or negligence belonged to the claimant, as the injured party, rather than defendant.Accordingly, as defendant failed to allege any facts permitting an inference that it was anintended third-party beneficiary or otherwise entitled to recovery on its counterclaims, they wereproperly dismissed (see MandarinTrading Ltd. v Wildenstein, 16 NY3d 173, 181-182 [2011]; IMS Engrs.-Architects,P.C. v State of New York, 51 AD3d at 1357-1358; compare Saratoga Schenectady Gastroenterology Assoc., P.C. v Bette &Cring, LLC, 83 AD3d 1256, 1257-1258 [2011]).[FN2][*3]
Defendant next contends that Supreme Court erred ingranting summary judgment to plaintiff. We disagree. The court concluded that an oral contractexisted between plaintiff and defendant, and that plaintiff was entitled to recovery on the basis ofan account stated, that 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 account stated may be "implied from theretention of an account rendered for an unreasonable period of time without objection and fromthe surrounding circumstances" (Jim-Mar Corp. v Aquatic Constr., 195 AD2d at 869).When no timely objection is raised after an account is presented, "silence is deemed acquiescenceand warrants enforcement of the implied agreement to pay" (J.B.H., Inc. v Godinez, 34AD3d at 875 [internal quotation marks, brackets and citations omitted]).
Here, plaintiff demonstrated that after he was retained by defendant, he submitted periodicbills to defendant, upon which defendant made payments without objection until shortly after thetrial. Thereafter, plaintiff alleged that he sent detailed invoices to defendant in December 2007,April 2008, June 2008 and October 2008, to which defendant made no response of any kind untilNovember 2008. Plaintiff supplied copies of these invoices as well as documents andcorrespondence showing that for several months after defendant's last payment, it continued torequest plaintiff's services without expressing dissatisfaction or indicating that it did not intend topay for them. Plaintiff further alleged that he made numerous telephone and e-mail inquiriesabout the lack of payment but received no response other than, on one occasion in April 2008, apromise from defendant's associate to forward the inquiry to defendant's principal. Thesesubmissions satisfied plaintiff's prima facie burden to show that accounts were submitted andretained without objection, thus shifting the burden to defendant to demonstrate the existence oftriable issues of fact (see J.B.H., Inc. v Godinez, 34 AD3d at 875; Wit's End Giftiquev Ianniello, 277 AD2d 684, 686 [2000]).
In response, "[d]efendant failed to rebut the inference that it agreed to the account bytendering evidentiary proof of circumstances tending to show a contrary inference" (Jim-MarCorp. v Aquatic Constr., 195 AD2d at 870). Defendant's principal, Urs Broderick Furrer,alleged by affidavit that he did not recall receiving any invoices from plaintiff before October2008. This allegation did not directly refute plaintiff's claim that previous invoices had beenrendered—and Furrer also acknowledged that his files contained an invoice bearing a faxheader revealing that it was transmitted in June 2008. Even if this invoice was the only one thatdefendant received before October 2008, Furrer did not claim that the charges reflected thereinwere substantially inconsistent with defendant's knowledge of the services that plaintiff hadrendered or the rates established by the parties' prior course of dealing. As to his objections tocertain charges, date errors, and other inconsistencies, none of these were made until after thisaction was commenced in 2009. By its own admission, defendant received an invoice fromplaintiff in October 2008 containing all of the itemized charges to which it now objects.Nonetheless, defendant's letter to plaintiff's counsel more than a month later contained nospecific objections to the charges other than a generalized claim that they were "exorbitant" andthat defendant did not consent to their [*4]accuracy. Such claimsdo not constitute the requisite "specific, as opposed to general, allegations of protest" (1000 N. of N.Y. Co. v Great Neck Med.Assoc., 7 AD3d 592, 593 [2004]).[FN3]
Defendant's objections were not primarily grounded in the particulars of the invoices;instead, the central contention is that the failure to pay for plaintiff's services was justified by hisalleged malfeasance. However, this claim was not supported by an expert affidavit opining thatplaintiff's services "deviated from accepted industry standards" and that this failure proximatelycaused the loss of the claimant's case (Columbus v Smith & Mahoney, 259 AD2d 857,858 [1999]; see Travelers Indem. Co. vZeff Design, 60 AD3d 453, 455 [2009]). Contrary to defendant's claim, the decision ofthe Court of Claims does not replace such an expert opinion. Although that court criticized someof plaintiff's methods, it made no finding as to his competence beyond the requisite assessment ofthe credibility of the conflicting expert opinions. The mere fact that the Court of Claims foundplaintiff's opinions less credible than those of the opposing experts is insufficient to present afactual issue as to whether his performance was substandard; such determinations are necessarilymade whenever the opinions of experts are in conflict. Further, the court explicitly stated that itsdetermination was not based solely on credibility, but also on its factual conclusion that thesubject accident was proximately caused by driver error, and not by a highway defect. Finally,defendant makes no claim that it communicated its objection on this ground to plaintiff untilNovember 2008, more than a year after the allegedly deficient trial testimony, six months afterthe Court of Claims rendered its determination, and five months after the June 2008 invoice. Asdefendant's belated objections were not raised within a reasonable time and "fall[ ] far short ofraising a question of fact as to the existence of an account stated," we agree with Supreme Courtthat plaintiff is entitled to summary judgment (J.B.H., Inc. v Godinez, 34 AD3d at 875;see Wit's End Giftique v Ianniello, 277 AD2d at 686; John T. Percy & Assoc. vCollura, 239 AD2d 650, 651 [1997]; Marino v Watkins, 112 AD2d 511, 512-513[1985]).
Peters, J.P., Lahtinen, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote 1: Supreme Court found that the2006 retainer agreement did not constitute a written contract running directly between defendantand plaintiff, as it was not signed by defendant's principal.
Footnote 2: Defendant's contention that thisdetermination unfairly deprives it of potential claims or defenses based on plaintiff's allegedmalfeasance lacks merit; third-party beneficiary status was not required to enforce anycontractual obligations existing directly between plaintiff and defendant (compare LakePlacid Club Attached Lodges v Elizabethtown Bldrs., 131 AD2d 159, 162 [1987]).
Footnote 3: Even had defendant's objectionsto specific charges been timely raised, they fail to withstand close inspection. For example,defendant now complains that plaintiff's invoices include charges for services rendered before theclaimant's case was transferred to defendant, but the record reveals that these charges wereincluded in prior invoices, were paid without objection, and are not included in the outstandingbalance for which plaintiff now seeks payment.