Greenspan & Greenspan v. Wenger

May 28, 2002
Versions:294 A.D.2d 539
742 N.Y.S.2d 875
2002 N.Y. App. Div. LEXIS 5615

—In an action, inter alia, to recover payment for legal services rendered based on an account stated, the defendant appeals from an order of the Supreme Court, Westchester County (DiBlasi, J.), entered March 12, 2001, which granted the plaintiffs’ motion for summary judgment on their second cause of action for an account stated and denied the defendant’s cross motion for leave to enter a judgment on his counterclaim alleging negligent legal representation upon the plaintiffs default in replying to the counterclaim.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the plaintiffs’ motion for summary judgment on their second cause of action for an account stated. The plaintiffs met their burden of establishing that the defendant received and retained the plaintiffs’ invoices seeking payment for professional services rendered without objection within a reasonable time (see Ruskin, Moscou, Evans & Faltischek v FGH Realty Credit Corp., 228 AD2d 294, 295). The defendant failed to raise a triable issue of fact because he did not submit any written documentation or evidentiary proof to support his claim that he objected to the invoices, and did not provide details concerning the content of the conversations in which he allegedly objected to the bills (see id. at 296; Darby & Darby v VSI Intl, 95 NY2d 308, 315).

The Supreme Court properly denied the defendant’s cross motion for leave to enter a judgment on default on his *540counterclaim alleging negligent legal representation. The plaintiffs offered a reasonable excuse for their delay in replying to the counterclaim and demonstrated the existence of a meritorious defense (see Jones v Chuang, 281 AD2d 395, 396; Gurreri v Village of Briarcliff Manor, 249 AD2d 508).

The defendant’s remaining contentions are without merit. Florio, J.P., Smith, Krausman and Townes, JJ., concur.