Shea & Gold v. Burr

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before ROSENBERGER
• Citation: Shea & Gold v. Burr, 598 N.Y.S.2d 261, 194 A.D.2d 369 (N.Y. App. Div. 1993)
• Decision Date: 08 June 1993
• Parties: SHEA & GOULD, Plaintiff-Respondent, v. Carll S. BURR, III and Carll S. Burr Realty, Defendants-Appellants.

Page 261

598 N.Y.S.2d 261

194 A.D.2d 369

SHEA & GOULD, Plaintiff-Respondent, v. Carll S. BURR, III and Carll S. Burr Realty, Defendants-Appellants.

Supreme Court, Appellate Division First Department.

June 8, 1993.

Before ROSENBERGER, J.P., and ELLERIN, ASCH and RUBIN, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County (Stuart Cohen, J.), entered on or about February 13, 1992, which denied defendants' motion to vacate a default judgment and granted plaintiff's motion for partial summary judgment on its second cause of action for an account stated in the amount of $50,812.04, unanimously modified, on the law, to the extent of reversing so much of the order as grants plaintiff summary judgment against defendant Carll S. Burr Realty and, except as so modified, affirmed, without costs.

It is alleged that, in February 1987, plaintiff entered into an oral retainer agreement with defendants to represent them in connection with an action entitled Merrill Lynch Realty Associates Inc. and Merrill Lynch Realty Carll Burr, v. Carll S. Burr, III, Carll Burr Realty, et al.; that, on or about July 24, 1989, plaintiff sent defendants a bill for $55,812.04 for legal services performed and expenses incurred in connection with that litigation; that, in December 1989, a partner in plaintiff law firm telephoned defendant Carll S. Burr III (Burr) to discuss the outstanding statement; and that, on or about December 21, 1989, plaintiff received a payment in the amount of $5,000. It is further alleged that plaintiff attempted to reach an agreement with defendants whereby the balance would be paid over an 18-month period at 10 percent interest, but defendant Burr did not execute and return a promissory note embodying these terms.

This action, seeking to recover the remaining balance on the ground of, inter alia, an account stated, was commenced on or about April 30, 1990. Defendant interposed an answer generally denying the allegations of the complaint. By notice of motion dated July 29, 1991, plaintiff moved for summary judgment for an account stated for the remaining balance, asserting that it was entitled to relief because defendants failed to object to the July 24, 1989 bill and because defendants assented to the bill by virtue of their $5,000.00 payment. Following two defaults in appearance in opposition to the motion, a default judgment was entered against defendants who, on December 13, 1991, moved to vacate their default. Supreme Court denied defendants' motion, finding: "Although defendants' default was unintentional and due to law office failure, no meritorious defense to the cause of action for account stated has been set forth. Although the bill plaintiff sent was not itemized * * * it is undisputed that the bill was sent and received and a partial payment made."

"An account stated is an agreement between the parties to an...