Opinion
2003-713 QC.
Decided June 3, 2004.
Appeal by plaintiff from an order of the Civil Court, Queens County (A. Gazzara, J.), entered February 24, 2003, which denied its motion for summary judgment on its cause of action for an account stated.
Order unanimously modified by granting plaintiff's motion to the extent of awarding it partial summary judgment on its cause of action for an account stated in the sum of $310 and matter remanded to the court below for further proceedings on the remainder of the account stated cause of action as well as the breach of contract cause of action; as so modified, affirmed without costs.
PRESENT: ARONIN, J.P., GOLIA and RIOS, JJ.
Plaintiff seeks summary judgment upon its cause of action for an account stated. While plaintiff claims that defendant is liable for all of the legal services set forth in plaintiff's monthly statements, defendant claims that the majority of the services were performed on behalf of corporate entities and that he is not liable for such work. Although plaintiff's supporting affidavit states that plaintiff always looked to defendant for payment of such debts, inasmuch as the record does not contain clear and explicit evidence that defendant agreed to be personally liable for what would otherwise be debts of the corporate entities, plaintiff was not entitled to summary judgment on its cause of action for an account stated with respect to said services ( see Zuckerman v. City of New York, 49 NY2d 557; McDonagh Real Estate Dev. v. Kwilecki, 158 AD2d 372).
Plaintiff also seeks partial summary judgment on its cause of action for an account stated with respect to legal services rendered to defendant in connection with an agreement defendant received from his employer and concerning contracts related to a sale of real property by defendant and his wife. Although defendant admits he is personally liable for such legal services, he claims he paid for the services and plaintiff misapplied his payments to the corporate debts. Based upon our review of the checks which were annexed to defendant's reply papers, the checks, which were drawn on corporate bank accounts either bore handwritten numbers which indicated that the checks pertained tocorporate debts or the checks preceded the services for which defendant admits he is responsible. As a result, plaintiff is entitled to partial summary judgment on its cause of action for an account stated solely to the extent of the $310 sum sought to be recovered by plaintiff for the two personal matters performed by plaintiff.