Bashian & Farber, LLP, White Plains, NY (Andrew Frisenda
and Irving O. Farber of counsel), appellant pro se and for
appellant Gary E. Bashian, P.C.
Michael S. Haber, New York, NY, for respondents.
PRISCILLA HALL, J.P. JEFFREY A. COHEN ROBERT J. MILLER
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action, inter alia, to recover on an account stated, the
plaintiffs appeal, as limited by their brief, from so much of
an order of the Supreme Court, Westchester County (Wood, J.),
dated December 17, 2014, as denied that branch of their cross
motion which was for summary judgment on the cause of action
to recover on an account stated and denied their separate
motion for a preliminary injunction.
that the order is modified, on the law, by deleting the
provision thereof denying that branch of the plaintiffs'
cross motion which was for summary judgment on the issue of
liability on the cause of action alleging an account stated,
and substituting therefor a provision granting that branch of
the plaintiffs' cross motion; as so modified, the order
is affirmed insofar as appealed from, with costs to the
plaintiffs, and the matter is remitted to the Supreme Court,
Westchester County, for further proceedings on the complaint
including, inter alia, a determination of damages on the
cause of action to recover on an account stated.
plaintiffs commenced this action against the defendants,
inter alia, to recover on an account stated for legal fees in
an amount "not less than $329, 068.90." The
complaint alleged that these fees were incurred during the
plaintiffs' representation of the defendant Richard Syms
in a contested probate proceeding.
response to a motion made by the defendants, the plaintiffs
cross-moved for, inter alia, summary judgment on the cause of
action to recover on an account stated, which was asserted
against Richard Syms. The plaintiffs contended that their
submissions demonstrated that Syms received and retained the
invoices they sent to him, and that he never registered any
objection to them, but, in fact, affirmatively approved all
of the charges set forth therein and made partial payments on
the account. In opposition, the defendants disputed the
calculations pertaining to a portion of the total amount due
on the account.
plaintiffs separately moved for a preliminary injunction,
alleging that the defendants engaged in a series of
fraudulent transfers of assets in order to avoid payment of
the outstanding legal bills. The defendants opposed the
plaintiffs' motion for a preliminary injunction arguing,
inter alia, that the plaintiffs failed to establish that they
would sustain irreparable injury if the preliminary
injunction were not granted.
order appealed from, the Supreme Court, among other things,
denied that branch of the plaintiffs' cross motion which
was for summary judgment on the cause of action to recover on
an account stated and denied the plaintiffs' separate
motion for a preliminary injunction. We modify.
account stated is an agreement between parties, based upon
their prior transactions, with respect to the correctness of
the account items and the specific balance due"
(Citibank [South Dakota], N.A. v Abraham, 138 A.D.3d
1053, 1056; see Rodkinson v Haecker, 248 NY 480,
484-485; Lockwood v Thorne, 11 NY 170, 173-174;
see also 13-72 Corbin on Contracts § 72.1
). "Although an account stated may be based on an
express agreement between the parties as to the amount due,
an agreement may be implied where a defendant retains bills
without objecting to them within a reasonable period of time,
or makes partial payment on the account" (Citibank
[South Dakota], N.A. v Abraham, 138 A.D.3d at 1056;
see Fleetwood Agency, Inc. v Verde Elec. Corp., 85
A.D.3d 850, 851). The "agreement" at the core of an
account stated is independent of the underlying obligation
between the parties (see Citibank [South Dakota], N.A. v
Abraham, 138 A.D.3d at 1056; Citibank [S. D.] N.A. v
Cutler, 112 A.D.3d 573, 574).
the plaintiffs demonstrated their prima facie entitlement to
judgment as a matter of law on the issue of liability on the
cause of action to recover on an account stated by submitting
evidence that Syms received the invoices that the plaintiffs
sent to him seeking payment for professional services
rendered and that he agreed to pay the amount set forth in
the plaintiffs' statement of account (see Law Offs.
of David J. Sutton, P.C. v NYC Hallways & Lobbies,
Inc., 105 A.D.3d 1010, 1010-1011; Pryor &
Mandelup, LLP v Sabbeth, 82 A.D.3d 731, 732; Ziskin
Law Firm, LLP v Bi-County Elec. Corp., 43 A.D.3d 1158,
1159). Contrary to the Supreme Court's conclusion,
"[i]t is not part of a plaintiff's prima facie case
on a claim for an account stated to show the reasonableness
of the retainer agreement or its legal services"
(Emery Celli Brinckerhoff & Abady, LLP v Rose,
111 A.D.3d 453, 454; see Thelen LLP v Omni Contr. Co.,
Inc., 79 A.D.3d 605, 606; Tunick v Shaw, 45
A.D.3d 145, 149; Cohen Tauber Spievak & Wagner, LLP v
Alnwick, 33 A.D.3d 562, 562-563; O'Connell &
Aronowitz v Gullo, 229 A.D.2d 637, 638).
opposition to the plaintiffs' prima facie showing, the
defendants failed to raise a triable issue of fact as to
liability (see Florida Infusion Servs., Inc. v Alden
Surgical Co., 23 A.D.3d 614, 615; Dreyer & Traub
v Handman, 121 A.D.2d 256). The defendants did not
dispute that the plaintiffs had represented Syms or that Syms
had agreed to the statement of account when it was presented
to him. Accordingly, contrary to the defendants'
contention, liability on this cause of action is not
precluded on the ground that an agreement did not occur
because there was a dispute regarding the correctness of the
account (see M & A Constr. Corp. v McTague, 21
A.D.3d 610, 612; cf. Seneca Pipe & Paving Co., Inc. v
South Seneca Cent. School Dist., 83 A.D.3d 1540, 1542;
Abbott, Duncan & Wiener v Ragusa, 214 A.D.2d
412, 413). Furthermore, the defendants' submissions were
insufficient to raise a triable issue of fact as to whether
the agreement to pay was obtained by fraud, or was
unenforceable due to some other equitable consideration
(cf. Bryan L. Salamone, P.C. v Cohen, 129 A.D.3d
877, 879). Accordingly, the Supreme Court should have granted
that branch of the plaintiffs' cross motion which was for
summary judgment on the issue of liability on the cause of
action to recover on an account stated (see Law Offs. of
David J. Sutton, P.C. v NYC Hallways & Lobbies,
Inc., 105 A.D.3d at 1010-1011; Consolidated Edison
Solutions, Inc. v Pytluk, 91 A.D.3d 899, 899;
Florida Infusion Servs., Inc. v Alden Surgical Co.,
23 A.D.3d at 615).
contrary to the plaintiffs' contention, they failed to
demonstrate their prima facie entitlement to judgment as a
matter of law on the issue of damages (see Florida
Infusion Servs., Inc. v Alden Surgical Co., 23 A.D.3d at
615). Indeed, the plaintiffs conceded that there were certain
errors in their calculations such that they were not entitled
to the total amount sought in the complaint. Accordingly, the
plaintiffs are not entitled to summary judgment on the issue
of damages on the cause of action to recover on an account
stated (see id.; Dreyer & Traub v
Handman, 121 A.D.2d 256).
Supreme Court also properly denied the plaintiffs' motion
for a preliminary injunction. "To obtain a preliminary
injunction, a movant must demonstrate, by clear and
convincing evidence, (1) a likelihood of success on the
merits, (2) irreparable injury if a preliminary injunction is
not granted, and (3) a balance of equities in his or her
favor" (Liberty Mut. Ins. Co. v Raia Med. Health,
P.C., 140 A.D.3d 1029, 1031 [internal quotation marks
omitted]). Here, the plaintiffs failed to establish that they
would sustain irreparable injury if a preliminary injunction
was not granted. Irreparable injury, for purposes of equity,
has been held to mean any injury for which money damages are
insufficient (see e.g. Di Fabio v Omnipoint
Communications, Inc., 66 A.D.3d 635, 636-637). Since the
plaintiffs would be sufficiently compensated by money damages
and, in fact, are seeking money damages ...