Opinion
2011-10-4
LAW OFFICES OF Clifford G. KLEINBAUM, respondent,v.Arnold G. SHURKIN, etc., appellant.
Fenster & Kurland LLP, New City, N.Y. (Robert D. Fenster of counsel), for appellant.Clifford G. Kleinbaum, White Plains, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of contract and on an account stated for legal fees, the defendant appeals from (1) so much of an order of the Supreme Court, Westchester County (Giacomo, J.), entered June 18, 2010, as granted that branch of the plaintiff's motion which was for summary judgment on the cause of action to recover on an account stated, and (2) a judgment of the same court entered July 2, 2010, which, upon the order, is in favor of the plaintiff and against him in the principal sum of $10,347. The notice of appeal from the order is deemed also to be a notice of appeal from the judgment ( see CPLR 5501[c] ).
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 one bill of costs is awarded to the plaintiff.
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, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). 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] ).
The plaintiff established its prima facie entitlement to judgment as a matter of law on the cause of action to recover on an account stated for legal fees by submitting copies of its invoices for professional services, setting forth the billable hours expended and identifying the services rendered, and demonstrating that the defendant received and retained the invoices without objecting to them within a reasonable time, and made partial payment on the invoices ( see Landa v. Blocker, 87 A.D.3d 719, 928 N.Y.S.2d 779; Pryor & Mandelup, LLP v. Sabbeth, 82 A.D.3d 731, 732, 918 N.Y.S.2d 165; Gassman & Keidel, P.C. v. Adlerstein, 63 A.D.3d 784, 880 N.Y.S.2d 514; Landa v. Dratch, 45 A.D.3d 646, 648, 846 N.Y.S.2d 256; Greenspan & Greenspan v. Wenger, 294 A.D.2d 539, 742 N.Y.S.2d 875; O'Connell & Aronowitz v. Gullo, 229 A.D.2d 637, 638, 644 N.Y.S.2d 870; Ruskin, Moscou, Evans & Faltischek v. FGH Realty Credit Corp., 228 A.D.2d 294, 295, 644 N.Y.S.2d 206). In opposition, the defendant failed to raise a triable issue of fact ( see Cohen Tauber Spievak & Wagner, LLP v. Alnwick, 33 A.D.3d 562, 563, 825 N.Y.S.2d 439; O'Connell & Aronowitz v. Gullo, 229 A.D.2d at 638, 644 N.Y.S.2d 870; Chisholm–Ryder Co. v. Sommer & Sommer, 70 A.D.2d 429, 432–433, 421 N.Y.S.2d 455). Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the cause of
action to recover on an account stated for legal fees.
DILLON, J.P., ENG, SGROI and MILLER, JJ., concur.