Opinion
2012-03-13
SCHEICHET & DAVIS, P.C., Plaintiff–Respondent, v. Kenneth NOHAVICKA, as Executor of the Estate of Michael J. Endico, Sr., etc., Defendant–Appellant.
Clement S. Patti, Jr., White Plains, for appellant. Scheichet & Davis, P.C., New York (Harry J. Petchesky of counsel), for respondent.
Clement S. Patti, Jr., White Plains, for appellant. Scheichet & Davis, P.C., New York (Harry J. Petchesky of counsel), for respondent.
Judgment, Supreme Court, New York County (Charles E. Ramos, J.), entered May 20, 2011, awarding plaintiff law firm the principal sum of $167,419.83 pursuant to an order, same court and Justice, entered May 11, 2011, which granted plaintiff's*849 cross motion for summary judgment on its cause of action for an account stated and denied defendant's motion to dismiss the complaint, unanimously affirmed, without costs. Appeal from aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Plaintiff established entitlement to summary judgment on its claim for an account stated by showing that its client “received, retained without objection, and partially paid invoices without protest” ( Gamiel v. Curtis & Reiss–Curtis, P.C., 60 A.D.3d 473, 474, 874 N.Y.S.2d 109 [2009], lv. dismissed 13 N.Y.3d 763, 886 N.Y.S.2d 863, 915 N.E.2d 1160 [2009] ). Defendant's conclusory allegations of protests fail to raise a triable issue of fact as to the existence of an account stated ( see Darby & Darby v. VSI Intl., 95 N.Y.2d 308, 315, 716 N.Y.S.2d 378, 739 N.E.2d 744 [2000]; Kramer Levin Naftalis & Frankel LLP v. Canal Jean Co., Inc., 73 A.D.3d 604, 900 N.Y.S.2d 646 [2010] ).
The court properly determined that a prior order fixing the amount of plaintiff's charging lien on the proceeds of the settlement of the underlying lawsuit was not res judicata as to plaintiff's account stated claim ( see generally O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158 [1981] ). Plaintiff did not have an opportunity to litigate its account stated claim when the court awarded the charging lien.