Opinion
November 2, 1998
Appeal from the Supreme Court, Nassau County (Bucaria, J.).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the respondent is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).
This is an action to recover legal fees. Contrary to the defendant's contention, the plaintiff is not precluded from asserting a cause of action predicated upon an account stated despite the fact that the original agreement between the parties contained a minimum nonrefundable retainer clause (see, Matter of Cooperman, 83 N.Y.2d 465). Furthermore, the plaintiff established his entitlement to judgment as a matter of law on his first cause of action to recover on an account stated since the defendant initialed as "approved" the invoice upon which this cause of action is based, failed to thereafter timely object to the invoice and made partial payment thereon (see, Speciner v. Parr, 251 A.D.2d 544; R.A. Assocs. v. Lerner, 245 A.D.2d 437; Coudert Bros. v. Finalco Group, 176 A.D.2d 622; Chisholm-Ryder Co. v. Sommer Sommer, 70 A.D.2d 429, 431). The court also properly dismissed the defendant's affirmative defenses.
We note that the only other cause of action asserted in the complaint was withdrawn by the plaintiff at the time he submitted his motion for summary judgment.
Bracken, J. P., Santucci, Krausman and Florio, JJ., concur.