Boulanger, Hicks, Stein & Churchill, P. C. v. Jacobs

235 A.D.2d 353, 653 N.Y.S.2d 11, 1997 N.Y. App. Div. LEXIS 625

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 28, 1997
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Edward Lehner, J.), entered January 19, 1996, awarding plaintiff damages and bringing up for review an order, same court and Justice, entered January 11, 1996, which granted plaintiff’s motion for summary judgment on its cause of action for an account stated and dismissed defendant’s counterclaim for legal malpractice, unanimously affirmed, with costs. The appeal from the order is dismissed, without costs, as subsumed within the appeal from the judgment.

Defendant’s factual opposition to plaintiff’s motion on the account stated cause of action with respect to the arbitration proceeding, which consisted entirely of one sentence stating that he objected often to plaintiff’s conduct of the proceedings and the amount of plaintiff’s bills, is insufficient to raise a genuine issue of fact, in view of the overwhelming evidence of defendant’s recognition of his obligation to pay plaintiff the entire amount of the 18 invoices in question, including his partial payment of the invoices accompanied by a promise to pay the balance (see, Shea & Gould v Burr, 194 AD2d 369, 371). Nor is there merit to the defense and counterclaim for legal malpractice, which, at best, allege nothing more than an error of judgment in recommending certain litigation (see, Rosner v Paley, 65 NY2d 736). We have considered defendant’s remaining contentions and find them to be without merit. Concur— Sullivan, J. P., Milonas, Rosenberger and Tom, JJ.