Duane Morris Llp v. Astor Holdings Inc.

• Decision Date: 02 April 2009
• Docket Number: 228.,229.
• Citation: 2009 NY Slip Op 02544,61 A.D.3d 418,877 N.Y.S.2d 250
• Parties: DUANE MORRIS LLP, Respondent-Appellant, v. ASTOR HOLDINGS INC. et al., Appellants-Respondents. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

61 A.D.3d 418

877 N.Y.S.2d 250

2009 NY Slip Op 02544

DUANE MORRIS LLP, Respondent-Appellant, v. ASTOR HOLDINGS INC. et al., Appellants-Respondents. (And a Third-Party Action.)

228.

229.

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

Decided April 2, 2009.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered on or about October 25, 2007, which, to the extent appealed from as limited by the briefs, in this action to recover legal fees, granted plaintiff's motion for summary judgment on its account stated cause of action against defendant Astor Holdings Inc. (Astor) and dismissing part of defendants' legal malpractice counterclaim, and denied plaintiff's motion for summary judgment dismissing defendant Robot Wars LLC's malpractice counterclaim, unanimously modified, on the law, to grant plaintiff's motion for summary judgment dismissing Robot Wars' malpractice counterclaim, and otherwise affirmed, with costs in favor of plaintiff. Order, same court and Justice, entered August 19, 2008, which, inter alia, granted plaintiff's motion for reargument and, upon reargument, granted plaintiff summary judgment on its account stated claim against Robot Wars, unanimously affirmed, with costs in favor of plaintiff.

The lack of discovery in this action does not require denial of plaintiff's summary judgment motion as premature (see e.g. Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 44 AD3d 557 [2007]). Defendants failed to show that facts essential to justify opposition to the motion were within plaintiff's exclusive knowledge or that discovery might lead to facts relevant to the issues (see id.; Bailey v New York City Tr. Auth., 270 AD2d 156, 157 [2000]).

The record shows that in December 2003, each defendant signed an agreement with plaintiff, acknowledging that it owed plaintiff a certain sum of money for their legal representation and agreeing to pay it within a certain amount of time. Although defendants contend that there is a triable issue of fact as to whether these agreements were signed under duress, "[r]epudiation of an agreement on the ground that it was procured by duress requires a showing of both (1) a wrongful threat, and (2) the preclusion of the exercise of free will" (Fred Ehrlich, P.C. v Tullo, 274 AD2d 303, 304 [2000]). Here, defendants have admitted that the December 2003 agreements resulted from significant negotiations with plaintiff during which they were represented by separate counsel, and even if plaintiff threatened to cease representing defendants unless it were paid, that is not a wrongful threat (id.). There is no need for discovery as to whether the December 2003 agreements are enforceable, as the existence of a wrongful threat and the overbearing of defendants' free will are both matters within defendants' knowledge.

The affidavit of defendants' principal, which claimed that he orally protested plaintiff's services, does not serve to defeat plaintiff's motion. A client's "self-serving, bald allegations of oral protests [a]re insufficient to raise a triable issue of fact as to the existence of an account stated" (Darby & Darby v VSI Intl., 95 NY2d 308, 315 [2000]), and defendants do not need discovery as to whether they ever protested plaintiff's bills, since that is also a matter within their own knowledge.

Defendants' contention that the December 2003 agreements cannot form the basis of an account stated because they are not itemized billing statements, is raised for the first time in their reply brief and is not entitled to consideration (see e.g. Meade v Rock-McGraw, Inc., 307 AD2d 156, 159 [2003]). In any event, plaintiff's account stated claims are not based solely on the December 2003 agreements, but also on the detailed billing statements dated from January 2004 through August 2004...