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Mintz & Fraade, P.C. v. Docuport, Inc.

Supreme Court of New York, First Department

October 10, 2013

Mintz & Fraade, P.C., Plaintiff-Appellant
v.
Docuport, Inc., Defendant-Respondent.

Mintz & Fraade, P.C., New York (Alan P. Fraade of counsel), for appellant.

Tom, J.P., Sweeny, Saxe, Freedman, Clark, JJ.

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered April 12, 2012, which, to the extent appealed from, denied plaintiff's motion for summary judgment on its claim for an account stated and dismissing of defendant's counterclaim for breach of fiduciary duty as time-barred, unanimously affirmed, without costs.

The motion court correctly denied plaintiff's motion for summary judgment on its claim for an account stated. Plaintiff law firm failed to state a prima facie case for an account stated since the invoices submitted in support of the motion did not set forth plaintiff's "hourly rate, the billable hours expended, or the particular services rendered" (Ween v Dow, 35 A.D.3d 58, 62 [1st Dept 2006]).

The motion court also properly declined to dismiss defendant's counterclaim for breach of fiduciary duty. Although the counterclaim was based on events that occurred more than three years before the counterclaim was interposed (see CPLR 214), the counterclaim arose from the same "transactions, occurrences, or series of transactions and occurrences" as the claims in the complaint (CPLR 203[d]; cf. Messinger v Mount Sinai Med. Ctr., 279 A.D.3d 344 [1st Dept 2001]).


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