| Whiteman, Osterman & Hanna, LLP v Oppitz |
| 2013 NY Slip Op 02433 [105 AD3d 1162] |
| April 11, 2013 |
| Appellate Division, Third Department |
| Whiteman, Osterman & Hanna, LLP, Respondent, vRandall Oppitz, Appellant. |
—[*1] Ganz, Wolkenbreit & Siegfeld, LLP, Albany (Lianne S. Pinchuk of counsel), forrespondent.
Egan Jr., J. Appeal from an order of the Supreme Court (Connolly, J.), enteredDecember 12, 2011 in Albany County, which granted plaintiff's motion for summaryjudgment.
In December 2005, defendant retained plaintiff to perform various legal services inconnection with a real estate transaction. In the years that followed, plaintiff alsorepresented defendant with respect to—insofar as is relevant here—twomatters identified in plaintiff's billing records as "Birch Mountain" and "adv. JackAllison," and defendant periodically was billed for the legal fees and expenses incurredin conjunction therewith. By October 2010, defendant owed plaintiff a total of$7,083.59—representing $1,618.90 in unpaid fees and expenses with respect tothe Birch Mountain matter and $5,464.69 with respect to the Allison matter—and,when no payment appeared to be forthcoming, plaintiff commenced this action againstdefendant for an account stated. Following joinder of issue and discovery, plaintiffsuccessfully moved for summary judgment. This appeal by defendant ensued.
We affirm. "An account stated is an agreement between parties to an account basedupon prior transactions between them with respect to the correctness of the account itemsand balance due" (Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869 [1993][citations omitted], lv denied 82 NY2d 660 [1993]; accord Antokol & Coffin vMyers, 86 AD3d 876, 877 [2011]; J.B.H., Inc. v Godinez, 34 AD3d 873, 874 [2006]). Anattorney or law firm, in turn, may[*2]"recover under suchcause of action with proof that a bill, even if unitemized, was issued to a client and heldby the client without objection for an unreasonable period of time" (O'Connell &Aronowitz v Gullo, 229 AD2d 637, 638 [1996], lv denied 89 NY2d 803[1996]; see Antokol & Coffin v Myers, 86 AD3d at 877; see also Law Offs. of Clifford G.Kleinbaum v Shurkin, 88 AD3d 659, 660 [2011]). Notably, the attorney or lawfirm in question need not "establish the reasonableness of the fee since the client's act ofholding the statement without objection will be construed as acquiescence as to itscorrectness" (O'Connell & Aronowitz v Gullo, 229 AD2d at 638; see generally Levine v Harriton &Furrer, LLP, 92 AD3d 1176, 1178 [2012]; J.B.H., Inc. v Godinez, 34AD3d at 874-875).
Here, plaintiff demonstrated its entitlement to judgment as a matter of law bytendering evidence that it generated invoices for services rendered on a monthly basis,mailed those invoices to defendant and did not receive any specific objection in responsethereto until after the commencement of this action (see American Express Centurion Bank v Gabay, 94 AD3d795, 795 [2012]; Levine v Harriton & Furrer, LLP, 92 AD3d at 1178-1179;Law Offs. of Clifford G. Kleinbaum, 88 AD3d at 660; O'Connell &Aronowitz v Gullo, 229 AD2d at 638-639). Although defendant asserted that herepeatedly complained regarding the amount of the bills, as well as the manner in whichthe various retainers he provided were applied thereto, noticeably absent from the recordis any documentation—prior to the commencement of thisaction—substantiating defendant's objections in this regard, and the case lawmakes clear that generalized, oral protestations are insufficient to defeat a motion forsummary judgment (see Levine v Harriton & Furrer, LLP, 92 AD3d at 1179;Antokol & Coffin v Myers, 86 AD3d at 877; J.B.H., Inc. v Godinez, 34AD3d at 875; compare M & AConstr. Corp. v McTague, 21 AD3d 610, 612 [2005]).
To the extent that defendant contends that further discovery is warranted, wedisagree. Despite defendant's assertion that plaintiff failed to properly apply a priorretainer and/or refused to refund any unused portion thereof, defendant failed to assert acounterclaim or raise any affirmative defense in this regard, and any further "disclosurewould not contradict plaintiff's proof" (George S. May Intl. Co. v Thirsty Moose, Inc., 19 AD3d721, 722 [2005]). Defendant's remaining contentions, including his assertion thatplaintiff violated the Rules of Professional Conduct (see 22 NYCRR 1200.0) areeither unpreserved for our review or have been considered and found to be lacking inmerit.
Peters, P.J., Spain and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.