Opinion
960 CA 17–00496
12-21-2018
Anthony C. LAVALLE, Plaintiff–Respondent, v. COHOLAN FAMILY, LLC, and Daniel Coholan, an Individual, Jointly and Severally, Defendants–Appellants.
KIRWAN LAW FIRM, P.C., SYRACUSE (TERRY J. KIRWAN, JR., OF COUNSEL), FOR DEFENDANTS–APPELLANTS. ANTHONY C. LAVALLE, SYRACUSE, D.J. & J.A. CIRANDO, ESQS. (JOHN A. CIRANDO OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
KIRWAN LAW FIRM, P.C., SYRACUSE (TERRY J. KIRWAN, JR., OF COUNSEL), FOR DEFENDANTS–APPELLANTS.
ANTHONY C. LAVALLE, SYRACUSE, D.J. & J.A. CIRANDO, ESQS. (JOHN A. CIRANDO OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff, an attorney, commenced this action for breach of contract, an account stated, and quantum meruit, seeking to recover unpaid attorney's fees and expenses for services he provided to defendants in litigation to enforce a contract to sell real property. Plaintiff moved for, inter alia, summary judgment on the complaint, and Supreme Court granted the motion. Defendants appeal.
We conclude that the court properly granted the motion with respect to the cause of action for an account stated. "An account stated is an agreement, express or implied, between the parties to an account based upon prior transactions between them with respect to the correctness of account items and a specific balance due on them" ( Citibank [S.D.] N.A. v. Cutler, 112 A.D.3d 573, 573–574, 976 N.Y.S.2d 196 [2d Dept. 2013] ). "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" ( id. at 574, 976 N.Y.S.2d 196 [internal quotation marks omitted] ). Here, plaintiff submitted evidence showing that he invoiced defendants for charges totaling approximately $50,000 and that defendants made partial payments on the invoices of approximately $19,000 over several months. In light of those partial payments, we conclude that plaintiff satisfied his prima facie burden of establishing the existence of an account stated (see Holtzman v. Griffith, 162 A.D.3d 874, 875–876, 80 N.Y.S.3d 307 [2d Dept. 2018] ; Milstein v. Montefiore Club of Buffalo, 47 A.D.2d 805, 805–806, 365 N.Y.S.2d 301 [4th Dept. 1975] ). In opposition, defendants failed to raise a triable issue of fact (see Holtzman, 162 A.D.3d at 876, 80 N.Y.S.3d 307 ).
We have considered defendants' related contentions regarding plaintiff's other causes of action and conclude that they are moot in light of our determination.