Sieratzki & Ceccarelli v. Nathanson

233 A.D.2d 213, 650 N.Y.S.2d 525, 1996 N.Y. App. Div. LEXIS 11793

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1996
• Status: Published

Opinion

Order, Supreme Court, New York County (Lorraine Miller, J.), entered April 4, 1996, which, inter alia, denied plaintiffs motion for summary judgment on its cause of action for an account stated, unanimously affirmed, without costs.

We agree with the IAS Court that there exist sufficient questions of fact on this record to preclude summary judgment on the cause of action for an account stated where plaintiff law firm’s bills were questioned by defendant client and where payments made thereafter were pursuant to a retainer agreement covering both past and future services. Under the facts of this case, we deem the questioning of the bills sufficient to rebut the presumption of an implied agreement to pay an account stated by virtue of retention of plaintiffs bill (see, Diamond & Golomb v D’Arc, 140 AD2d 183). Concur—Sullivan, J. P., Ellerin, Nardelli, Tom and Andrias, JJ.