Cohen Tauber Spievak & Wagner, LLP v. Alnwick

Appellate Division of the Supreme Court of New York

Cohen Tauber Spievak & Wagner, LLP v. Alnwick

33 A.D.3d 562, 825 N.Y.S.2d 439

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 31, 2006

StatusPublished

Cited by17 cases

This text of 33 A.D.3d 562 (Cohen Tauber Spievak & Wagner, LLP v. Alnwick) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cohen Tauber Spievak & Wagner, LLP v. Alnwick, 33 A.D.3d 562, 825 N.Y.S.2d 439 (N.Y. Ct. App. 2006).

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Opinion

Judgment, Supreme Court, New York County (Harold B. Beeler, J.), entered September 22, 2005, awarding plaintiff the principal sum of $210,036.28 while severing and dismissing defendants’ counterclaims for the period prior to September 15, 2003; and order, same court and Justice, entered April 18, 2006, which, to the extent appealable, denied defendants’ motion to renew, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered September 6, 2005, which, inter alia, granted plaintiffs motion for partial summary judgment, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff demonstrated entitlement to summary judgment on its claim for an account stated, and defendants failed to establish the existence of admissible evidence that would raise genuine issues of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Defendants received plaintiffs invoices from 2000 through September 15, 2003 without objection, and made partial payments thereon (see Shea & Gould v Burr, 194 AD2d 369 [1993]). Their “bald conclusory allegations of fraud, mistake and other equitable considerations are insufficient to defeat a motion for summary judgment” on an account stated (Liddle, O’Connor, Finkelstein & Robinson v Koppelman, 215 AD2d 204 [1995]). Furthermore, it is “not necessary to establish the [563]*563reasonableness of the fee since the client’s act of holding the statement without objection will be construed as acquiescence as to its correctness” (O’Connell & Aronowitz v Gullo, 229 AD2d 637, 638 [1996], lv denied 89 NY2d 803 [1996]).

Renewal was properly denied because defendants failed to allege new facts or explain why the documents upon which their claims were based had not been included in the prior motion. We have considered defendants’ remaining arguments and find them without merit. Concur—Tom, J.E, Andrias, Marlow, McGuire and Malone, JJ.

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Judgment, Supreme Court, New York County (Harold B. Beeler, J.), entered September 22, 2005, awarding plaintiff the principal sum of $210,036.28 while severing and dismissing defendants’ counterclaims for the period prior to September 15, 2003; and order, same court and Justice, entered April 18, 2006, which, to the extent appealable, denied defendants’ motion to renew, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered September 6, 2005, which, inter alia, granted plaintiffs motion for partial summary judgment, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff demonstrated entitlement to summary judgment on its claim for an account stated, and defendants failed to establish the existence of admissible evidence that would raise genuine issues of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Defendants received plaintiffs invoices from 2000 through September 15, 2003 without objection, and made partial payments thereon (see Shea & Gould v Burr, 194 AD2d 369 [1993]). Their “bald conclusory allegations of fraud, mistake and other equitable considerations are insufficient to defeat a motion for summary judgment” on an account stated (Liddle, O’Connor, Finkelstein & Robinson v Koppelman, 215 AD2d 204 [1995]). Furthermore, it is “not necessary to establish the [563]*563reasonableness of the fee since the client’s act of holding the statement without objection will be construed as acquiescence as to its correctness” (O’Connell & Aronowitz v Gullo, 229 AD2d 637, 638 [1996], lv denied 89 NY2d 803 [1996]).

Renewal was properly denied because defendants failed to allege new facts or explain why the documents upon which their claims were based had not been included in the prior motion. We have considered defendants’ remaining arguments and find them without merit. Concur—Tom, J.E, Andrias, Marlow, McGuire and Malone, JJ.

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33 A.D.3d 562, 825 N.Y.S.2d 439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-tauber-spievak-wagner-llp-v-alnwick-nyappdiv-2006.

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