Kramer Levin Naftalis & Frankel LLP v. Canal Jean Co., Inc.

• Decision Date: 25 May 2010
• Parties: KRAMER LEVIN NAFTALIS & FRANKEL LLP, Plaintiff-Appellant, v. CANAL JEAN CO., INC., et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 646

73 A.D.3d 604

KRAMER LEVIN NAFTALIS & FRANKEL LLP, Plaintiff-Appellant,

v.CANAL JEAN CO., INC., et al., Defendants-Respondents.

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

May 25, 2010.

Kramer Levin Naftalis & Frankel LLP, New York (Ronald S. Greenberg of counsel), for appellant.

Baker, Leshko, Saline & Blosser, LLP, White Plains (Mitchell J. Baker of counsel), for respondents.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered December 1, 2009, which, to the extent appealed from, denied plaintiff's motion for summary judgment on its causes of action for account stated, unanimously reversed, on the law, with costs, and the motion granted as to each such claim against defendants. The Clerk is directed to enter judgment accordingly.

Defendants' statements that they made oral protests about the invoices in question during various meetings with plaintiffin March 2008 are facially insufficient to establish that they protested the invoices ( Duane Morris LLP v. Astor Holdings Inc., 61 A.D.3d 418, 419, 877 N.Y.S.2d 250 [2009] ). Indeed, these statements are contradicted by the fact that defendants made partial payments on the invoices ( see Zanani v. Schvimmer, 50 A.D.3d 445, 856 N.Y.S.2d 65 [2008] ). Nor does plaintiff's failure to provide a written retainer agreement, as required by 22 NYCRR 1215.1, bar its claims for account stated ( see Miller v. Nadler, 60 A.D.3d 499, 500, 875 N.Y.S.2d 461 [2009] ). Plaintiff's mathematicalerror in its affidavits on the motion (an error in defendants' favor) is also not fatal to its claims, since the invoices themselves are fully consistent and provide a single total for the various claims ( see Sisters of Charity Hosp. of Buffalo v. Riley, 231 A.D.2d 272, 282-283, 661 N.Y.S.2d 352 [1997] ).

Although no cause of action for account stated is pleaded against R & R in the complaint, this omission is not a bar to summary judgment because we find that the evidence necessary to substantiate the claim is in the record. Further, plaintiff made the argument to the motion court and defendants have not been prejudiced ( see Weinstock v. Handler, 254 A.D.2d 165, 166, 679 N.Y.S.2d 48 [1998] ).

GoNZALEZ, P.J., SAXE, NARDELLI, McGUIRE, MOSKOWITZ, JJ., concur.