Wand, Powers & Goody, LLP v. Yuliano

• Decision Date: 23 November 2016
• Citation: 144 A.D.3d 1017,2016 N.Y. Slip Op. 07946,42 N.Y.S.3d 229
• Parties: WAND, POWERS & GOODY, LLP, plaintiff-respondent/counterclaim defendant-respondent, v. Marie YULIANO, defendant/counterclaim plaintiff-appellant.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1017

42 N.Y.S.3d 229

2016 N.Y. Slip Op. 07946

WAND, POWERS & GOODY, LLP, plaintiff-respondent/counterclaim defendant-respondent,

v.Marie YULIANO, defendant/counterclaim plaintiff-appellant.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 23, 2016.

John A. Reno, Deer Park, N.Y., for defendant/counterclaim plaintiff-appellant.

Wand & Goody, LLP, suing herein as Wand, Powers & Goody, LLP, Huntington, N.Y. (Jennifer H. Goody of counsel), plaintiff-respondent pro se.

L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Joan Martino of counsel), for counterclaim defendant-respondent.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, BETSY BARROS and VALERIE BRATHWAITE NELSON, JJ.

In an action to recover unpaid legal fees, in which the defendant counterclaimed to recover damages for legal malpractice, the defendant appeals from a judgment of the Supreme Court, Suffolk County (Mayer, J.), entered August 27, 2014, which, upon an order of the same court dated July 28, 2014, granting those branches of the plaintiff's motion which were for summary judgment on the complaint and pursuant to CPLR 3211(a)(7) to dismiss the counterclaim, is in favor of the plaintiff and against her in the total sum of $90,043.26, and dismissed the counterclaim.

ORDERED that the judgment is modified, on they law, by deleting the provision thereof awarding the plaintiff the total sum of $90,043.26; as so modified, the judgment is affirmed, without costs or disbursements, that branch of the plaintiff's motion which was for summary judgment on the complaint is denied, and the order dated July 28, 2014, is modified accordingly.

The defendant retained the plaintiff law firm to represent her in a matrimonial action. The Supreme Court granted the plaintiff's pretrial motion to be relieved as the defendant's counsel. The plaintiff commenced the instant action to recover its unpaid legal fees in the underlying matrimonial action based on a theory of an account stated. The defendant asserted a counterclaim to recover damages for legal malpractice.

The Supreme Court should have denied that branch of the plaintiff's motion which was for summary judgment on the complaint. The plaintiff demonstrated its prima facie entitlement to judgment as a matter of law on the complaint by establishing that it regularly tendered invoices for services rendered to the defendant and that the defendant either signed off on the invoices or failed to timely object to them (see Landa v. Blocker, 87 A.D.3d 719, 721, 928 N.Y.S.2d 779 ). Nonetheless, in opposition, the defendant submitted an affidavit in which she asserted that she only signed the invoices because she was told that, if she did not sign, no work would be done on her case. This assertion was sufficient to raise a triable issue of fact as to whether the defendant acquiesced in the correctness of the invoices (see id. at 721, 928 N.Y.S.2d 779 ).

However, the Supreme Court properly granted that branch of the plaintiff's motion which was to dismiss the defendant's counterclaim to recover damages for legal malpractice. On a motion to dismiss a counterclaim pursuant to CPLR 3211(a)(7), a court must accept as true the facts as alleged in the pleading, accord the pleader the benefit of every possible favorable inference, and determine only whether...