Legum v. Ruthen
| Decision Date | 23 January 1995 |
| Parties | Steven G. LEGUM, Respondent, v. Sheldon RUTHEN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Sheldon Ruthen, appellant pro se.
Carlucci & Legum, Mineola (Steven G. Legum, pro se of counsel), for respondent.
Before BRACKEN, J.P., and SANTUCCI, KRAUSMAN and GOLDSTEIN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover for the reasonable value of legal services rendered, the defendant appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Kohn, J.), entered January 29, 1993, which, upon granting the plaintiff's motion for summary judgment on the first, second, third, and fourth causes of action and for a hearing for the assessment of damages on the third and fourth causes of action, is in favor of the plaintiff in the principal sum of $3,000 with respect to the plaintiff's first and second causes of action, and directed a hearing to assess damages on the plaintiff's third and fourth causes of action, and to determine the fifth cause of action.
ORDERED that the defendant is awarded one bill of costs.
The plaintiff is the assignee of a law firm which rendered legal services to the defendant. The complaint alleged five causes of action based on (1) contract, (2) account stated, (3) quantum meruit, (4) intentional tort, and (5) a contractual clause governing "liquidated damages". The demands for judgment associated with each of these causes of action were: (1) $3,500 based on breach of contract, (2) $3,500 based on account stated, (3) $7,500 based on quantum meruit, (4) $50,000 based on intentional tort, and (5) $700 based on the liquidated damages clause.
In a decision dated December 14, 1992, the Supreme Court (Kohn, J.), granted a motion by the plaintiff for summary judgment on the first, second, third, and fourth causes of action, and to set the matter down for a hearing on the issue of damages as to the third and fourth causes of action. The decision also directed a hearing as to the fifth cause of action, although this relief had not been requested in the plaintiff's motion, and directed the settlement of a judgment on notice. On January 29, 1993, the court entered an order and judgment (one paper) which awarded the plaintiff the principal sum of $3,000, and directed a hearing to assess damages as to the plaintiff's third and fourth causes of action and a determination of the fifth cause of action. The defendant appealed from the order and judgment.
The parties agreed that the plaintiff's assignor would be paid according to the reasonable value of its services. We agree with the defendant that the two affidavits submitted by the plaintiff in support of his motion for summary judgment are devoid of evidence as to the reasonable value of the services rendered by the assignor law firm. The plaintiff's notice to admit dated September 10, 1992, did not call for an admission as to the actual value of the services rendered by the plaintiff's assignor, and the defendant's failure to properly respond to these notices to admit consequently does not establish the actual value of those services. The parties' stipulation that the defendant would pay a total of $3,500 to the plaintiff, at which time each party would execute a general release in favor of the other, did not terminate the action (see, Teitelbaum Holdings v. Gold, 48 N.Y.2d 51, 421 N.Y.S.2d 556, 396 N.E.2d 1029). The stipulation reflects an understanding that if the defendant were to fail to comply with the conditions set forth therein, the litigation would continue (cf., HCE Assocs. v. 3000 Watermill Lane Realty Corp., 131 A.D.2d 543, 516 N.Y.S.2d 269). There was no other proof as to the reasonable value of the services rendered by the assignor law firm, and thus, the judgment in the principal sum of $3,000 summarily awarded to the plaintiff cannot be sustained on a breach of contract theory, as pleaded in the plaintiff's first cause of action.
We also find that the plaintiff failed to demonstrate a right to summary judgment in the principal sum of $3,000 on the basis of an account stated, as pleaded in the plaintiff's second cause of action. Proof that an unitemized bill was issued by an attorney and then held by the client without objection for an unreasonable period of time may, under certain circumstances, provide a basis upon which to find an implied assent so as to constitute an...
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