R.F. Schiffmann Associates, Inc., and ROBERT F. SCHIFFMANN, Plaintiffs,
Baker & Daniels LLP and WEAVER POPCORN COMPANY, INC., Defendants.
For plaintiffs: Michael Q. Carey, Esq. Carey & Assocs. LLC
For defendants: Jonathan M. Borg, Esq. Bedell & Forman LLP
Barbara Jaffe, J.
By notice of motion, plaintiffs move pursuant to CPLR 3212 for an order granting them partial summary judgment on their second cause of action for an account stated and also granting them costs, disbursements, attorney fees, and pre- and post-judgment statutory interest. Defendants oppose and, by notice of cross motion, move pursuant to 22 NYCRR 130-1.1 for an order awarding them sanctions against plaintiffs.
I. PERTINENT PROCEDURAL BACKGROUND
On December 29, 2008, plaintiffs filed and served a complaint containing three causes of action, breach of contract, account stated, and quantum meruit. (NYSCEF 267-1).
On or about February 23, 2009, defendants moved to dismiss the complaint against defendant Weaver Popcorn Company, Inc. (Weaver) and plaintiffs cross-moved for summary judgment on their cause of action for an account stated. (NYSCEF 267). By decision and order dated April 28, 2010, the justice previously assigned to this matter denied both motions, finding as to plaintiffs' motion that there existed factual issues and credibility determinations that could not then be resolved. (NYSCEF 267-3).
On August 8, 2011, as pertinent here, defendants moved for an order granting them partial summary judgment as to plaintiffs' claim for late fees, and plaintiffs filed their second motion for summary judgment on their account stated cause of action. (NYSCEF 267-5). By decision and order dated January 13, 2012, the prior justice denied both motions, holding that plaintiffs' submissions in support of their motion created factual issues as to the accuracy of their bills, that they failed to establish when the bills were made and sent to defendants, the number of invoices allegedly sent, and whether they followed a regular office mailing procedure, and that there were disputed issues related to defendants' objections to the invoices. (NYSCEF 267-6).
On February 16, 2012, plaintiffs filed a motion seeking leave to reargue the second motion and also sought sanctions against defendants, asserting that an affidavit submitted in opposition to the motion by Thomas M. Shoaff, a member of Weaver's Board of Directors and a partner at defendant Baker & Daniels LLP (Baker), who was the "oversight attorney" for the case at issue, was false. Defendants cross-moved for sanctions, claiming that plaintiffs' motion for sanctions was frivolous. (NYSCEF 267-7).
On July 11, 2012, the parties appeared for oral arguments on the motions, and the previous justice told plaintiffs' attorney that "it would be far more beneficial to your client to get this case to the point where you can file a note of issue and just try it... If you believe, after discovery is complete, you want to make a third summary judgment motion, God bless you, go ahead. But otherwise, try the case and get it done. Stop wasting time with these kinds of frivolous motions." (NYSCEF 273). The justice denied plaintiffs' motions for leave to reargue and for sanctions, and granted defendants' cross-motion for sanctions in the amount of $2, 500. (Id.).
After oral argument on the prior motions and while a decision on the motions was pending, the justice also issued commissions for the depositions of Shoaff and Kevin Richard Erdman, another Baker partner, who was responsible for legal services in the case and the specific matter for which plaintiffs were hired, which were taken on September 18, 2012, and September 28, 2012, respectively. (NYSCEF 274, 275).
On October 18, 2012, defendants filed a note of issue seeking a non-jury trial, and on October 26, 2012, plaintiffs filed a cross-note of issue with a jury demand. (NYSCEF 267). ...