Jaffe & Asher, L. L. P. v. Cushing

Appellate Division of the Supreme Court of New York

Jaffe & Asher, L. L. P. v. Cushing

289 A.D.2d 17, 734 N.Y.S.2d 23, 2001 N.Y. App. Div. LEXIS 11627

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

DecidedDecember 4, 2001

StatusPublished

Cited by1 cases

This text of 289 A.D.2d 17 (Jaffe & Asher, L. L. P. v. Cushing) 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

Jaffe & Asher, L. L. P. v. Cushing, 289 A.D.2d 17, 734 N.Y.S.2d 23, 2001 N.Y. App. Div. LEXIS 11627 (N.Y. Ct. App. 2001).

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Opinion

Order, Supreme Court, New York County (Edward Lehner, J.), entered August 30, 2000, which, in an action to recover a legal fee, denied plaintiff law firm’s motion for summary judgment on its cause of action for account stated, unanimously affirmed, without costs. Default judgment of the same court and Justice, entered March 8, 2000, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, and vacated.

The motion was properly denied on the ground that an issue of fact exists as to whether defendant orally objected to plaintiff’s bills (see, Collier, Cohen, Crystal & Bock v MacNamara, 237 AD2d 152). As the motion court noted, defendant set forth ample specifics of her objections, including when and to whom made, as well as circumstances surrounding the retainer and course of representation that tend to explain why the bills were objectionable. As the motion court also noted, defendant’s position is further supported by statements plaintiff itself made in support of an interim fee application in the custody proceeding accounting for most of its fee, to the effect that defendant had exhausted all of her resources in defending that action.

Defendant promptly moved to vacate her default. The parties agreed to convert that motion to the motion for summary judgment here under review. In light of all the circumstances, the default should be vacated. Concur — Rosenberger, J. P., Nardelli, Mazzarelli, Wallach and Marlow, JJ.

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Order, Supreme Court, New York County (Edward Lehner, J.), entered August 30, 2000, which, in an action to recover a legal fee, denied plaintiff law firm’s motion for summary judgment on its cause of action for account stated, unanimously affirmed, without costs. Default judgment of the same court and Justice, entered March 8, 2000, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, and vacated.

The motion was properly denied on the ground that an issue of fact exists as to whether defendant orally objected to plaintiff’s bills (see, Collier, Cohen, Crystal & Bock v MacNamara, 237 AD2d 152). As the motion court noted, defendant set forth ample specifics of her objections, including when and to whom made, as well as circumstances surrounding the retainer and course of representation that tend to explain why the bills were objectionable. As the motion court also noted, defendant’s position is further supported by statements plaintiff itself made in support of an interim fee application in the custody proceeding accounting for most of its fee, to the effect that defendant had exhausted all of her resources in defending that action.

Defendant promptly moved to vacate her default. The parties agreed to convert that motion to the motion for summary judgment here under review. In light of all the circumstances, the default should be vacated. Concur — Rosenberger, J. P., Nardelli, Mazzarelli, Wallach and Marlow, JJ.

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Bluebook (online)

289 A.D.2d 17, 734 N.Y.S.2d 23, 2001 N.Y. App. Div. LEXIS 11627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jaffe-asher-l-l-p-v-cushing-nyappdiv-2001.

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