Coudert Bros. v. Finalco Group, Inc.

| N.Y. App. Div. | Oct 22, 1991

— Order, Supreme Court, New York County (Shirley Fingerhood, J.), entered January 11, 1991, which granted plaintiff’s motion for reargument, and, upon reargument, granted plaintiff partial summary judgment in the amount of $215,515.31, with interest of $38,458.45 and costs and disbursements of $371, for a total of $254,344.76, unanimously affirmed. The execution of the judgment is stayed on condition of the continuance of the existing bond.

Plaintiff law firm seeks to recover the portion of its fee which it claims is established by an account stated. Defendants argue that they did not protest plaintiff’s monthly bills, and made partial payments on account thereof, under the mistaken belief that they were receiving top-quality legal services, and that as soon as they learned otherwise, they voiced objection to the bills. Defendants claim that they learned about the inadequacy of plaintiffs services a few days before the litigation for which plaintiff had been retained was settled, when, at a settlement conference, unnamed attorneys for the other parties criticized plaintiff for being consistently unprepared throughout the litigation.

The hearsay remarks of unnamed attorneys, without any factual particulars, do not create an issue of fact as to the quality of the services rendered by plaintiff. Plaintiff’s bills were submitted monthly, and, for the period in question, were received and retained by defendants without objection. By their silence and partial payments, defendants expressed their agreement that the bills were correct and would be paid. Upon such proof, summary judgment on an account stated was properly granted (Parker Chapin Flattau & Klimpl v Daelen Corp., 59 AD2d 375).

As long as defendants’ counterclaims remain unresolved, and in the absence of proof as to plaintiff’s potential exposure thereon, execution of the judgment in favor of plaintiff should be stayed (Kellar v Carney, 88 AD2d 1026; see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:31). Concur — Sullivan, J. P., Milonas, Wallach and Kassal, JJ.