July 9, 2013
DLA PIPER LLP (US), Plaintiff,
WILLIAM KOEPPEL and WHITEHOUSE ESTATES, INC., Defendants. Index No. 153734/12
JOAN A. MADDEN, J.
In this action to recover attorneys fees, plaintiff DLA Piper LLP ("DLA Piper") moves for an order pursuant to CPLR 3212 granting partial summary judgment on its first cause of action for an account stated. Defendants William Koeppel ("Koeppel") and Whitehouse Estates, Inc. ("Whitehouse") oppose the motion.
The following facts are not disputed unless otherwise noted. On or about December 1, 2009, a partner with plaintiff law firm, Kip Hall, sent defendants an Engagement and Conflict Waiver Letter for Legal Services. The letter "confirm[ed] that Whitehouse Estates and you [Koeppel] have retained our firm to assist Walter Jennings, Esq. with his representation of you in litigation with Craig Avedisian." As this court determined in its prior order dated December 14, 2012, the parties' Engagement Letter "conclusively establishes that plaintiff was retained by both Koeppel and Whitehouse. Koeppel does not deny signing the engagement letter in his individual capacity and on behalf of Whitehouse. He also admits paying plaintiff from a Whitehouse checking account. Thus, to the extent the first counterclaim asserts that defendant Whitehouse did not engage plaintiff law firm it must be dismissed."
With respect to "Fees and Costs, " the Engagement Letter "confirmed] that we have been provided with estimates from Mr. Jennings and you of the time expected from our associate and me, which are roughly 95 hours from the associate and 55 hours from me. The associate will be charged at $375/hour. My rate will be reduced from $795 to $740/hour. The total estimate for this work approximates $85, 000. If this estimate proves to be inaccurate, we will discuss it with you and the conditions under which we may continue." As noted above, it is undisputed that defendants paid plaintiff from a Whitehouse checking account. Defendants submit copies of 14 checks drawn on Whitehouse's checking account and payable to plaintiff, totaling $73, 500 and ranging in dates from December 2009 to May 2012.
On June 15, 2012, plaintiff commenced this action against Koeppel and Whitehouse, seeking outstanding legal fees in the amount of $88, 817.69. The complaint asserts causes of action for account stated, breach of contract, breach of implied covenant of good faith and unjust enrichment. Defendants answered asserting four affirmative defenses on behalf of Koeppel, lack of personal jurisdiction, breach of the agreement, payment and over billing; and one defense on behalf of Whitehouse alleging that plaintiff billed Whitehouse "for work performed for another." The answer also asserts two counterclaims on behalf of Whitehouse, both of which were dismissed by order of this court dated December 14, 2012. Defendants subsequently filed an answer with amended counterclaims. Plaintiff responded by again moving to dismiss (motion seq. no. 003) and that motion is not scheduled for oral argument until July 18, 2013. In the meanwhile, plaintiff is now moving for partial summary judgment on its first cause of action for an account stated.
As the proponent of a motion for summary judgment, plaintiff bears the initial burden to make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidentiary proof to eliminate any material issues of fact from the case. See Winegrad v. New York University Medical Center. 64 N.Y.2d 851, 853 (1985). Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposition papers. See JMD Holding Corp. v. Congress Financial Corp. 4 N.Y.3d 373, 384 (2005); Alvarez v. Prospect Hospital. 68 N.Y.2d 320, 324 (1986). As CPLR 3212(b) provides that a summary judgment motion "shall be supported by affidavit" of a person "having knowledge of the facts, " as well as other admissible evidence, a conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish the proponent's prima facie burden. See Coleman v. Maclas. 61 A.D.3d 569 (1st Dept 2009); JMD Holding Corp. v. Congress Financial Corp.. supra at 384-385; 127 Restaurant Corp. v. Rose Realty Group. LLC. 19 A.D.3d 172 (1st Dept 2005).
Plaintiffs motion is denied. Plaintiff has not submitted sufficient evidence in admissible form to support its claim for an account stated. In support of the motion, plaintiff submits affirmation from attorney Stephen P. Davidson and several exhibits consisting of the pleadings, the parties' Engagement Letter, copies of the parties' email correspondence, defendant Koeppel's affidavit in opposition to plaintiffs prior motion to dismiss Whitehouse's counterclaim, and a letter dated November 18, 2010 from plaintiff to defendant Koeppel advising that "you currently owe" plaintiff $ 109.317.68 for legal services performed. Plaintiff also submits a memorandum of law.
Defendants are correct that plaintiffs motion is "defective" for not including an affidavit as required by CPLR 3212. Although CPLR 2016 authorizes an attorney to submit an affirmation in lieu of an affidavit in most situations, "even those persons who are statutorily allowed to use such affirmations cannot do so when they are a party to an action." Slalvenburg Corp v. Opus Apparel. Inc. 53 N.Y.2d 799. 801 (1981); see Law Offices of Neal P. Frishberg v. Toman. 105 A.D.3d 712 (2nd Dept 2013); Berkman Bottger & Rodd. LLP v. Moriartv. 58 A.D.3d 539 (1st Dept 2009); Finger v. Saal 56 A.D.3d 606 (2nd Dept 2008); LaRusso v. Katz. 30 A.D.3d 240 (1st Dept 2006). Since the law firm is the named plaintiff in this action, its submission of an affirmation instead of an affidavit is "improper" and its contents must be disregarded, thereby rendering plaintiffs motion papers insufficient to support summary judgment. Id at 243 (quoting Pisacreta v. Joseph A. Minniti. PC. 265 A.D.2d 540 [2nd Dept 1999]); see Finger v. Saal. supra.
An attorney's affirmation may be used as a vehicle for submitting "acceptable attachments" that provide evidentiary proof in admissible form, such as documents and transcripts. Zuckerman v. City of New York. 49 N.Y.2d 557, 563 (1980). Here, however, the documents attached to plaintiffs affirmation, standing alone, are not adequate to establish the elements of plaintiff s claim for an account stated. Significantly, plaintiff fails to submit any invoices allegedly sent to defendants,  and the documents that are submitted do not establish that defendants retained the invoices without objection within a reasonable time, which are necessary elements of an account stated claim. See Russo v. Heller. 80 A.D.3d 531 (1st Dept 2011); RPI Professional Alternatives. Inc. v. Citigroup Global Markets Inc. 61 A.D.3d 618 (1st Dept 2009); Rockefeller Group. Inc v. Edwards & Hiorth. 164 A.D.2d 830 (1st Dept 1990).
Plaintiffs reliance on the partial payment doctrine is not persuasive. Partial payment or the failure of a party receiving an account to examine the statement and make all necessary objections may be deemed acquiescence to the correctness of the balance owed. Morrison Cohen Singer & Weinstein. LLP v Waters. 13 A.D.3d 51, 52 (1st Dept 2004); Rosenberg Selsman Rosenzweig & Co. LLP v Slutsker. 278 A.D.2d 145 (1st Dept 2000). It is undisputed that defendants paid plaintiff $73, 500. Even assuming without deciding that such payment establishes acquiescence on defendants' part, plaintiff is still required to establish by competent proof the other elements of an account stated, i.e. that it sent defendants detailed invoices as to the services performed and the rates charged for such services.
The court, therefore, concludes that plaintiff has failed to make a prima facie showing of entitlement to judgment as a matter of law on its account stated claim. Under these circumstances, the court need not consider the sufficiency of defendants' opposition. See JMD Holding Corp. v. Congress Financial Corp., supra; Alvarez v. Prospect Hospital, supra. Nevertheless, the court notes that the affidavit in opposition submitted by defendant Koeppel raises issues of fact as to whether defendants received plaintiffs invoices and had an opportunity to object. Specifically, Koeppel states that he recalls plaintiff "sending one set of invoices" that were "sent to a "business address I do not use, " and for that reason he "did not have an opportunity to properly review the invoices." Koeppel questions why plaintiff used that address, "when two addresses I'm easily reached at are listed on the top of Plaintiff s Engagement Letter." While Koeppel acknowledges payment, he states that he "just blindly sent in checks . . . based on my faith in Mr. Hall and the firm's reputation." He states that "not until recently .. . was I able to sit down with my attorneys and review the invoices, " since plaintiff "refused all requests" for copies of the invoices.
Defendants also raise issues of fact as to whether they were overcharged. Koeppel asserts that plaintiff billed at higher rates and for many more hours than agreed to in the Engagement Letter, which resulted in approximately $23, 000 in overcharges. Defendants submit copies of invoices from December 2009, and February, March, April and May 2010, which show that plaintiff billed defendants at rates than those provided for in the Engagement Letter. Specifically, the Engagement Letter states that partner Hall would charge $740 per hour and the associate $375 per hour. The invoices, however, show that in December 2009 Hall charged $795 per hour, and in December 2009 and February, March and April 2010, associates charged various hourly rates including $610, $475, $460 and $410.
Based on the foregoing, plaintiffs motion for partial summary judgment is denied. In view of this conclusion, the court makes no determination as to the additional issues raised by defendants.
Accordingly, it is
ORDERED that plaintiffs motion for partial summary judgment is denied; and it is further ORDERED that defendants' cross-motion for partial summary judgment is denied as moot; and it is
ORDERED that the parties are directed to appear for a status conference on July 18, 2013 at 9:30 am, Part 11, Room 351, 60 Centre Street.