Stim & Warmuth, P.C. v. E. End Cement & Stone, Inc.

• Decision Date: 09 July 2014
• Docket Number: Index No. 18169/2012
• Citation: 2014 NY Slip Op 31826 (U)
• Court: New York Supreme Court
• Parties: STIM & WARMUTH, P.C., Plaintiff(s), v. EAST END CEMENT AND STONE, INC. and DAVID SCHIAVONI, Defendant(s).

2014 NY Slip Op 31826(U)

STIM & WARMUTH, P.C., Plaintiff(s),
v.
EAST END CEMENT AND STONE, INC. and
DAVID SCHIAVONI, Defendant(s).

Index No. 18169/2012

SUPREME COURT - PART 50 COUNTY OF SUFFOLK - STATE OF NEW YORK

Orig. Date: March 25, 2014
Adj. Date: April 15, 2014
Dated: July 9, 2014

COPY

PRESENT

HON. ANDREW G. TARANTINO, JR.
A.J.S.C.

Motion Dec. 002: MotD 003: XMotD
ORDER GRANTING PARTIAL SUMMARY JUDGMENT IN FAVOR OF THE PLAINTIFF, STRIKING EAST END'S AFFIRMATIVE DEFENSE, DENYING DEFAULT JUDGMENT AND OTHER RELIEF

Upon consideration of the Notice of Motion of the plaintiff Stim & Warmuth PC ["the plaintiff''], for an order 1) granting a default judgment against defendant David Schiavoni ["Schiavoni"], on the third cause of action, 2) dismissing the affirmative defense of the defendant East End Cement and Stone, Inc. ["East End"], and 3) granting summary judgment in favor of the plaintiff against East End on the first and second causes of action of the complaint, dated February 27, 2014, (motion sequence 002), the affirmation and affidavit in support, and exhibits A through M, the affirmation and affidavit in opposition interposed solely on behalf of the defendant East End, and exhibit A, and the plaintiff's affirmation in reply and in opposition to the cross motion dated April 8, 2014, and exhibits J and K, and further

Upon consideration of the Notice of Cross Motion by Schiavoni for an order 1) granting an extension of time to answer the complaint, 2) compelling the plaintiff to accept service of an undated answer with one affirmative defense originally filed solely on behalf of East End on August 23, 2013, or in the alternative, an Answer filed on behalf of Schiavoni dated March 11], 2014, containing nineteen affirmative defenses, and 3) denying the plaintiff's motion for a default judgment against Schiavoni dated March 31, 2014, (motion sequence 003), the supporting

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affidavit, the supporting affirmation, and exhibits A and B, the plaintiff's affirmation in reply and in opposition to the cross motion dated April 8, 2014 and exhibits J and K, and Schiavoni's affirmation in reply, it is now

ORDERED that so much of the plaintiff's motion seeking an order granting a default judgment against defendant David Schiavoni ["Schiavoni"], on the third cause of action for unpaid legal fees is denied, and it is further

ORDERED that so much of the plaintiff's motion seeking an order dismissing the affirmative defense of the defendant East End is granted; and it is further

ORDERED that so much of the plaintiff's motion seeking an order granting summary judgment in favor of the plaintiff and against East End on the first cause of action of the complaint for the reasonable value of attorneys' fees is granted as to liability only and referred back to the IAS Judge for an assessment of the reasonableness of the fees sought; and it is further

ORDERED that so much of the plaintiff's motion seeking an order granting summary judgment in favor of the plaintiff against East End on the second cause of action of the complaint for an account stated is denied; and it is further

ORDERED that so much of Schiavoni's cross motion for an order compelling the plaintiff to accept service of the answer originally filed solely on behalf of East End on August 23, 2013, as Schiavoni's answer is granted, the Answer is deemed served, and the cross motion is otherwise denied; and it is further

ORDERED that the attorneys for the parties are directed to appear for a conference on August 19, 2014 at 9:30 AM at the courthouse located at One Court Street Annex, Riverhead.

This action for unpaid legal fees was commenced by the filing of the summons and complaint on June 14, 2012. Defendant Schiavoni is the President of defendant East End. There is no dispute that Schiavoni signed various letters of engagement on East End's behalf as its President to retain the plaintiff law firm on some eight different matters. As to the services to be provided in one of the eight matters entitled, "J.R.C. Land Company and Josephine Carnevale v East End Cement and Stone Inc. and David Schiavoni"'' described in a letter of engagement dated January 14, 2011, Schiavoni personally signed the engagement letter twice, once as East End's President, and again on his own behalf individually.

The same day the complaint for unpaid legal fees was filed, East End filed for bankruptcy and the instant action was stayed. The bankruptcy was dismissed on June 6, 2013 and the automatic stay in bankruptcy was lifted. The instant complaint was served on both defendants on June 19, 2013.

The complaint contains four causes of action. The first cause of action against East End alleges that the plaintiff rendered legal services and advanced disbursements in a variety of matters on East End's behalf in a total amount of $47,961.64 between May 1, 2011, and April 1, 2012, no

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part of which has been paid with the exception of $483.80, leaving an unpaid balance of $47,477.84.

The second cause of action is for an account stated in the amount of $47,477.84 which the plaintiff's moving papers clarify is alleged solely against East End. The third cause of action alleges that between July 1, 2011, and February 1, 2012, the plaintiff rendered legal services and advanced disbursements on behalf of both East End and Schiavoni individually in the total amount of $4,427.50 which...