Langione, Catterson & LoFrumento, LLP v. Schael

2017 NY Slip Op 1684, 148 A.D.3d 797, 47 N.Y.S.3d 913

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 2017
• Docket: 2015-00446
• Status: Published

Opinion

In an action to recover damages for breach of contract and on an account stated, the defendant appeals from (1) an order of the Supreme Court, Nassau County (McCormack, J.), entered August 21, 2014, which granted that branch of the plaintiffs motion which was for summary judgment on the cause of action for an account stated, and (2) a judgment of the same court dated October 24, 2014, which, upon the order, is in favor of the plaintiff and against her in the total sum of $88,086.06.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The appeal from the order 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 the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

The plaintiff established its prima facie entitlement to judgment as a matter of law on the cause of action for an account stated for legal fees due and owing from the defendant up to April 4, 2006 (see Law Offs. of Clifford G. Kleinbaum v Shurkin, 88 AD3d 659, 660 [2011]). In opposition, the defendant failed to raise a triable issue of fact (see Darby & Darby v VSI Intl., 95 NY2d 308, 315 [2000]), or establish that the motion was premature pending discovery (see Vikram Constr., Inc. v Everest Natl. Ins. Co., 139 AD3d 720, 721 [2016]).

Accordingly, the Supreme Court properly granted that branch of the plaintiff’s motion which was for summary judgment on the cause of action for an account stated.

Dillon, J.R, Austin, Hinds-Radix and Maltese, JJ., concur.