Thelen LLP v. Omni Contracting Co., Inc.

• Citation: 79 A.D.3d 605,914 N.Y.S.2d 119
• Parties: THELEN LLP, Plaintiff-Appellant, v. OMNI CONTRACTING CO., INC., Defendant-Respondent.
• Decision Date: 21 December 2010
• Court: New York Supreme Court Appellate Division

914 N.Y.S.2d 119
79 A.D.3d 605

THELEN LLP, Plaintiff-Appellant,
v.
OMNI CONTRACTING CO., INC., Defendant-Respondent.

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

Dec. 21, 2010.

914 N.Y.S.2d 119

Donald Pearce, New York, for appellant.

Feinstein & Nisnewitz, P.C., Bayside (Neil H. Angel of counsel), for respondent.

TOM, J.P., FRIEDMAN, CATTERSON, RENWICK, ABDUS-SALAAM, JJ.

79 A.D.3d 605

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered July 15, 2010, which, in an action to recover legal fees, denied plaintiff's motion for summary judgment on its cause of action for an account stated, unanimously reversed, on the law, with costs, and the motion granted.

The Clerk is directed to enter judgment accordingly.

79 A.D.3d 606

The record demonstrates that plaintiff was entitled to summary judgment on its cause of action for an account stated. Although discovery had yet to be conducted in this matter, this does not require the denial of the motion as premature ( see Duane Morris LLP v. Astor Holdings Inc., 61 A.D.3d 418, 877 N.Y.S.2d 250 [2009] ).

Contrary to defendant's contention, plaintiff did not have to establish the reasonableness of its fee ( see e.g.

914 N.Y.S.2d 120

Cohen Tauber Spievak & Wagner, LLP v. Alnwick, 33 A.D.3d 562, 825 N.Y.S.2d 439 [2006], lv. dismissed 8 N.Y.3d 840, 830 N.Y.S.2d 692, 862 N.E.2d 784 [2007] ). Nor does its failure to provide a written retainer agreement bar its claim for an account stated ( see Kramer Levin Naftalis & Frankel LLP v. Canal Jean Co., Inc., 73 A.D.3d 604, 605, 900 N.Y.S.2d 646 [2010] ).

The affidavit of defendant's president was insufficiently specific to raise a triable issue of fact as to the existence of an account stated ( see e.g. Zanani v. Schvimmer, 50 A.D.3d 445, 446, 856 N.Y.S.2d 65 [2008] ), and while the president incorporated his current attorney's affirmation by reference, that affirmation was "without probative value for [the attorney] apparently ha[d] no personal knowledge of the pertinent facts" ( PPG Indus. v. A.G.P. Sys., 235 A.D.2d 979, 980, 652 N.Y.S.2d 876 [1997] ). Furthermore, even if defendant's president orally complained that plaintiff's bills were excessive, that is insufficient to avoid summary judgment ( see Berkman Bottger & Rodd, LLP v. Moriarty, 58 A.D.3d 539, 871 N.Y.S.2d 135 [2009] ).