Hodgson, Russ, Andrews, Woods & Goodyear v. Roth

• Decision Date: 07 October 1992
• Citation: 590 N.Y.S.2d 817,186 A.D.2d 1001
• Court: New York Supreme Court — Appellate Division
• Parties: HODGSON, RUSS, ANDREWS, WOODS & GOODYEAR, Appellant, v. Ardith Fuller ROTH, Respondent.

Page 817

590 N.Y.S.2d 817

186 A.D.2d 1001

HODGSON, RUSS, ANDREWS, WOODS & GOODYEAR, Appellant, v. Ardith Fuller ROTH, Respondent.

Supreme Court of New York, Appellate Division,

Fourth Department.

October 7, 1992

Hodgson, Russ, Andrews, Woods & Goodyear by Anna Case, Buffalo, for appellant pro se. Cohen, Swados, Wright, Hanifin, Bradford & Brett (Charles W. Getman, of counsel), Buffalo, for respondent.

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in denying in its entirety plaintiff's motion for summary judgment. Plaintiff seeks to recover unpaid legal fees, expenses and disbursements in the amount of $18,464.74. In support of its motion, plaintiff showed that it was retained by defendant to represent her with respect to the construction and purchase of a condominium unit, that defendant agreed to pay plaintiff for its services through January 13, 1988, that plaintiff performed various services for defendant and billed her for those services, and that defendant paid a portion of the billed amounts but refused to pay the outstanding amount. That proof, submitted through the affidavit of a person with personal knowledge of the facts, was sufficient to establish that plaintiff was entitled to judgment as a matter of law for services performed before receipt of defendant's letter dated January 30, 1988, informing plaintiff that she would "be responsible for nothing, financially" after January 13, 1988 (see generally, Iselin & Co. v. Mann Judd Landau, 71 N.Y.2d 420, 425, 527 N.Y.S.2d 176, 522 N.E.2d 21; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790, 390 N.E.2d 298). Thus, plaintiff established that it is entitled to a total of $18,000.07, consisting of $16,351.22 from its second statement and $1,648.85 from its third statement, plus interest. It had billed $2,113.52 in its latter statement, but failed to establish entitlement to the charges beginning February 24, 1988 and the disbursements beginning February 17, 1988. In opposition to plaintiff's proof, defendant failed to raise a triable issue of fact. Her attorney's affidavit is without evidentiary value because the attorney lacked personal knowledge of the facts asserted (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718). (Appeal from Order of Supreme Court, Erie County, Gorski, J.--Summary Judgment.)

CALLAHAN, J.P., and GREEN, PINE, BOE...