Warshaw, Burstein, Cohen, Schlesinger & Kuh v. Kessner

Appellate Division of the Supreme Court of New York

Warshaw, Burstein, Cohen, Schlesinger & Kuh v. Kessner

214 A.D.2d 472, 625 N.Y.S.2d 215, 1995 N.Y. App. Div. LEXIS 4553

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

DecidedApril 25, 1995

StatusPublished

Cited by1 cases

This text of 214 A.D.2d 472 (Warshaw, Burstein, Cohen, Schlesinger & Kuh v. Kessner) 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.

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Warshaw, Burstein, Cohen, Schlesinger & Kuh v. Kessner, 214 A.D.2d 472, 625 N.Y.S.2d 215, 1995 N.Y. App. Div. LEXIS 4553 (N.Y. Ct. App. 1995).

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Opinion

Judgment, Supreme Court, New York County (Shirley Finger-hood, JJ, entered February 18, 1994 which, after a nonjury [473]*473trial, awarded plaintiff legal fees of $50,552 plus interest and costs against defendant Kessner, unanimously affirmed. Order of the same court and Justice dated December 22, 1993 which, inter alia, dismissed the action of counterclaim plaintiff 300 East 96th Street Associates, unanimously affirmed, with costs.

Counterclaim plaintiff 300 East 96th Street Associates, an entity controlled by defendant Steven Kessner, sponsored a cond-op conversion project which never materialized. Contrary to the contention on appeal, and in accordance with the findings of the trial court, to which we defer on issues of credibility (Thoreson v Penthouse Intl., 179 AD2d 29, 31, affd 80 NY2d 490), the cond-op conversion did not take place due to Associates’ failure to pay back taxes and to obtain the necessary subscriptions for purchase to satisfy both the State as well as its lender. No failure on the part of plaintiff was demonstrated and thus the malpractice complaint was properly dismissed.

As for the legal fees awarded against Kessner for the separate Gold Street project, we reject defendant Kessner’s claim that title to the premises was taken in a manner other than he had directed and therefore find that the defense of malpractice was properly rejected. Additionally, there was insufficient evidence that Kessner had specifically objected to the bills sent him in connection with this Gold Street project and therefore plaintiff properly established its right to recover legal fees on an account stated (see, Shea & Gould v Burr, 194 AD2d 369).

We have considered appellants’ remaining contentions and find them meritless. Concur—Ellerin, J. P., Rubin, Asch, Nardelli and Mazzarelli, JJ.

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Judgment, Supreme Court, New York County (Shirley Finger-hood, JJ, entered February 18, 1994 which, after a nonjury [473]*473trial, awarded plaintiff legal fees of $50,552 plus interest and costs against defendant Kessner, unanimously affirmed. Order of the same court and Justice dated December 22, 1993 which, inter alia, dismissed the action of counterclaim plaintiff 300 East 96th Street Associates, unanimously affirmed, with costs.

Counterclaim plaintiff 300 East 96th Street Associates, an entity controlled by defendant Steven Kessner, sponsored a cond-op conversion project which never materialized. Contrary to the contention on appeal, and in accordance with the findings of the trial court, to which we defer on issues of credibility (Thoreson v Penthouse Intl., 179 AD2d 29, 31, affd 80 NY2d 490), the cond-op conversion did not take place due to Associates’ failure to pay back taxes and to obtain the necessary subscriptions for purchase to satisfy both the State as well as its lender. No failure on the part of plaintiff was demonstrated and thus the malpractice complaint was properly dismissed.

As for the legal fees awarded against Kessner for the separate Gold Street project, we reject defendant Kessner’s claim that title to the premises was taken in a manner other than he had directed and therefore find that the defense of malpractice was properly rejected. Additionally, there was insufficient evidence that Kessner had specifically objected to the bills sent him in connection with this Gold Street project and therefore plaintiff properly established its right to recover legal fees on an account stated (see, Shea & Gould v Burr, 194 AD2d 369).

We have considered appellants’ remaining contentions and find them meritless. Concur—Ellerin, J. P., Rubin, Asch, Nardelli and Mazzarelli, JJ.

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214 A.D.2d 472, 625 N.Y.S.2d 215, 1995 N.Y. App. Div. LEXIS 4553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warshaw-burstein-cohen-schlesinger-kuh-v-kessner-nyappdiv-1995.

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