Landa v. BlockerLanda v. Blocker
Jay Landa, Respondent, v LYNN BLOCKER, Appellant. [928 NYS2d 779]—
Ordered that, upon reargument, the decision and order of this Court dated January 11, 2011 (Landa v Blocker, 80 AD3d 570 [2011]), is recalled and vacated, and the following decision and order is substituted therefor:
In an action, inter alia, to recover on an account stated, in which the defendant counterclaimed, among other things, to recover damages for legal malpractice, the defendant appeals (1)
Ordered that the appeal from the order dated April 13, 2009, is dismissed, without costs or disbursements; and it is further,
Ordered that the appeal from so much of thе order dated August 17, 2009, as denied that branch of the defendant‘s motion which was for leave to renew her cross motion and her opposition to the plaintiff‘s motion for summary judgment on the first cause of action of the amended complaint and to strike her affirmative defenses is dismissed as academic, without costs or disbursements, in light of our determination on the appeal from the judgment; and it is further,
Ordered that the judgment is modified, on the law, by deleting the provision thereof аwarding the plaintiff the principal sum of $193,525.40; as so modified, the judgment is affirmed, without costs or disbursements, those branches of the plaintiff‘s motion which were for summary judgment on the first cause of action of the amended complaint and to strike the eighth affirmative defense are denied, and the order dated April 13, 2009, is modified аccordingly; and it is further,
Ordered that the order dated August 17, 2009, is affirmed insofar as reviewed, without costs or disbursements; and it is further,
Ordered that the application is denied.
The appeal from the order dated Aрril 13, 2009, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from that order are brought up for review on the appeal from the judgment (see
The Suprеme Court properly denied the defendant‘s motion for summary judgment dismissing the amended complaint, but it should also have denied that branch of the plaintiff‘s motion which was for summary judgment on the first cause of action to recover on an account stated.
The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the first cause of action by tendering invoices for services rendered prior to December 5, 2006, setting forth his hourly rate, the billаble hours expended, and the particular services rendered, and establishing that the defendant signed such invoices, failed to timely object to the invoices, and made partial payments thereon (see Landa v Dratch, 45 AD3d 646, 648 [2007]; Landa v Sullivan, 255 AD2d 295 [1998]). In opposition, however, the defendant submitted her own affidavit, which was sufficient to raise a triablе issue of fact as to whether she acquiesced in the correctness of the invoices (see Interman Indus. Prods. v R. S. M. Electron Power, 37 NY2d 151, 153-154 [1975]; Rodkinson v Haecker, 248 NY 480, 485 [1928]). The defendant asserted in her affidavit that she signed the invoices as “approved,” not because she actually agreed that the amounts reflected therein were correct, but because she was told that no work would be done on her case unless she signed the invoices. For example, the defendant averred that, during a conference at the plaintiff‘s office, the plaintiff produced a number of unsigned billing statements and told the defendant that “the conference was not going to proceed until [she] signed the billing statements.” According to the defendant, she signed the billing statements, but “[t]here was no intent on [her] part to accept the billing so that it could never, ever, be challenged in the future.”
We note that the plaintiff‘s alleged refusal to proceed with his representation of the defendant unless the defеndant signed the billing statements “would not constitute duress by reason of which [the defendant] would be entitled to have the written statement invalidated” (Miller v Storer, 1 AD2d 956 [1956], affd 2 NY2d 815 [1957]). Here, however, the defendant does not seek to invalidate or repudiate either the billing statements or the
The Supreme Court also improperly granted that branch of the plaintiff‘s motion which was to strike the eighth affirmative defеnse alleging that the fees in question were excessive. The plaintiff failed to meet his prima facie burden of establishing his entitlement to judgment as a matter оf law in connection with this affirmative defense (see Bomba v Silberfein, 238 AD2d 261 [1997]). Accordingly, the Supreme Court should have denied that branch of the plaintiff‘s motion which was to strike the eighth affirmative defense alleging that the fees in question were excessive, without regard to the sufficiency of the defendant‘s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
However, the Supreme Court properly granted that branch of the plaintiff‘s separate motion which was for summary judgment dismissing the defendant‘s counterclaims, among other things, to recover damages for legal malpractice. Although an attorney‘s affirmation may serve as an expert opinion establishing “[a] basis for judging the adequacy of professional service” (Zasso v Maher, 226 AD2d 366, 367 [1996]), here, in opposition to the plaintiff‘s prima facie showing of entitlement to judgmеnt as a matter of law, the attorney‘s affirmation submitted by the defendant was insufficient to raise a triable issue of fact as to whether the plaintiff was negligent in his rеpresentation of her in the underlying matrimonial action (see Scartozzi v Potruch, 72 AD3d 787, 788-789 [2010]). Moreover, in opposition to the plaintiff‘s prima facie showing, the defendant failеd to raise triable issues of fact with respect to her other counterclaims.
The parties’ remaining contentions are either without merit or not properly before this Court. Skelos, J.P., Angiolillo, Hall and Lott, JJ., concur.