Wednesday, October 7, 2015

An attorney's account stated claim and a motion to renew.

Practice point:  The Appellate Division affirmed plaintiff-law firm's summary judgment motion. Plaintiff made a prima facie showing of an account stated through, among other things, its submission of an affirmation of its special counsel stating that plaintiff sent each of its 21 invoices to defendants using regular mailing procedures, and that defendants never objected to or returned the invoices. Even if no payments were applied to these invoices, defendants' mere reference to a subsequent settlement agreement noted in the complaint, without more, is conclusory and insufficient to raise a triable issue of fact as to whether they objected to the payments within a reasonable time.

Student note:  The Appellate Division affirmed the denial defendants' motion to renew, since the purportedly new material was available on plaintiff's prior motion and defendants did not offer a reasonable justification for failing to present the material at the time of that motion.

Case:  Zetlin & De Chiara LLP v. Gene Kaufman Architect, P.C., NY Slip Op 07059 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Agreements to agree.