Opinion
May 26, 1987
Appeal from the Supreme Court, Westchester County (Wood, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The court properly denied that branch of the plaintiff's motion which was for summary judgment on its second cause of action, which sought recovery of legal fees on the theory of an account stated. In his opposing affidavit, the defendant presented sufficient evidence of his objection to the account rendered "to rebut any inference of an implied agreement to pay the [account stated]", thereby precluding the plaintiff's recovery of its legal fee on this ground as a matter of law (see, Sandvoss v Dunkelberger, 112 A.D.2d 278, 279).
Further, neither the dismissal of the defendant's first and second counterclaims (see, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, rearg denied 3 N.Y.2d 941), nor a severance of his second counterclaim was warranted (see, Kellar v. Carney, 88 A.D.2d 1026). Mangano, J.P., Bracken, Lawrence and Kooper, JJ., concur.