Opinion
23320/07.
Decided November 14, 2007.
The parties in this action appeared as follows: Plaintiff by Sivin & Miller, LLP.
Defendant by Rubenstein & Rynecki, LLC.
In this action, plaintiff alleged that it had performed, on the behest of defendants — attorney Sanford Rubenstein and his law firm, Rubenstein & Rynecki — neuropsychological examinations, evaluations and reports of their clients for an agreed upon price. Plaintiff claimed that on November 30, 2006, it had sent defendants a statement and accounting of the amount owed for its services, that defendants did not object to its accounting or charges, but also did not make any payments. Therefore, this action ensued on or about January 23, 2007. Plaintiff alleged two causes of action — services rendered and account stated. Defendants asserted a general denial and twelve affirmative defenses including statute of limitations, statute of frauds, laches, and failure to state a cause of action because the bills were previously paid.
Plaintiff now moves for summary judgment pursuant to CPLR 3212 based on an account stated theory. In support, plaintiff submitted an affidavit of its accounts receivable coordinator, Kathy Piecara, who generally stated that the office staff performed work for defendants regarding their clients, and that the rates for the various types of work were discussed with and agreed to by defendants in advance. Ms. Piecara further stated that defendants never objected to the bills and paid them in "drips and drabs'". By mid-2006, the outstanding invoices totaled $21,000, at which point plaintiff declined to perform any more work for defendants until a payment was made. However, defendants made no further payments despite her multiple attempts to collect payment. Thereafter, on November 30, 2006, she sent, by certified mail, return receipt requested, a statement of account and a list of the cases that were unpaid. On February 22, 2007, as defendants did not deny receipt of the statement or failed to object thereto, its attorneys were authorized to initiate the instant action. Relying on Ms. Piecara's affidavit, plaintiff asserts that it has established its prima facie right to a judgment, as a matter of law ( see Ziskin Law Firm, LLP v Bi-County Electric Corp., 2007 WL 2782021, 2007 NY Slip Op. 06988 [2nd Dept. 2007]; Thaler & Gertler, LLP v Weitzman, 282 AD2d 522 [2nd Dept. 2001]).
Defendants opposed the motion and cross-moved for summary judgment. By way of an associate's affidavit, they argue that the account stated was insufficient in that it failed to detail fees or rates for the different amounts, that it lacked in specificity for the type of services rendered and that at least four alleged clients were no longer their clients. They further argue that the services benefitted third parties — their clients and therefore they, the attorneys, should not be liable for their clients' bills. Defendants added that the claim was barred by the statute of frauds.
Plaintiff urges this court to disregard defendants' opposition papers and cross-motion as they were supported by an affidavit rather than an affirmation, which is improper since the law firm is a party to this action ( see, Pisacreta v Minniti, 265 AD2d 540 [2nd Dept 1999]; Lauer v Rapp, 190 AD2d 778 [2nd Dept 1993]. However, defendants cured this procedural defect in their reply papers; to disregard them would be improper ( see Lauer, 190 AD2d 778 supra).
On a motion for summary judgment, the movant has the burden to make a prima facie showing of entitlement to judgment as a matter of law ( see, Alvarez v Prospect Hospital, 68 NY2d 320; Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395). The motion must be supported by an affidavit by someone with knowledge of the facts, and other documentary evidence, in admissible form, to demonstrate an absence of a material issue of fact ( see, id.). Plaintiff failed to meet this burden.
An account stated is an account, balanced and rendered, with an assent to the balance either express or implied ( see, Interman Indus. Prods. v R.S.M. Electron Power, 37 NY2d 151). This means that there is a debt and an express agreement that the statement of debt is to be treated as an account stated ( see, Grinnell v Ultimate Realty, LLC , 38 AD3d 600 [2nd Dept 2007] citing Gurney, Becker & Bourne v Benderson Dev. Co., 47 NY2d 995, 996). As Judge Cardozo explained in Newberger-Morris, Co. v Talcott, 219 NY 505, 512, "the very meaning of an account stated is that the parties have come together and agreed upon the balance of indebtedness, insimul computassent, so that an action to recover the balance as upon an implied promise of payment may thenceforth be maintained."
The statement here for "Rubinstein, Esq." dated November 30, 2006, in the amount of $21,000.00 enumerated sixteen different types of procedures and accompanying code numbers. There were no information as to the fees, patients' names, or dates as to when the procedures were performed. The list of cases had nineteen names and amounts, which totaled $21,000.00. Significantly, there was no evidence the statement was an instrument by which its presentation indicated that the amount owed was the debt the parties agreed upon and defendants agreed to pay ( see id.; Mike Nasti Sand Co. v Almar Landscaping Corp., 34 AD2d 554 [2nd Dept 1970]). While Ms. Piecara summarily stated that defendants agreed to the fees in advance and paid their bills in "drips and drabs," her statements were unsupported and therefore fails to carry any weight ( see, Herbert Paul, P.C. v Coleman, 236 AD2d 268 [1st Dept 1997]). Moreover, Ms. Piecara, in her capacity as a accounts receivable coordinator, did not demonstrate that she was knowledgeable of the alleged oral agreement between the parties and therefore fails to demonstrate that she had the requisite knowledge to be the affiant for this motion. Incidentally, Ms. Piecara stated that on February 22, 2007,"we authorized our attorneys to initiate the instant action." Apparently, she was unaware that a superceding authority had intervened since the complaint was filed one month earlier on January 23, 2007. Therefore, absent evidence that the statement dated November 30, 2006 is an agreed upon statement of debt, plaintiff has not made a prima facie showing that this is an account stated case which requires a summary judgment as a matter of law. Given this conclusion, defendants' cross-motion for summary judgment on the second cause of action is granted (CPLR 3212(b)).
Turning to defendants' argument regarding plaintiff's first cause of action for services rendered, the thrust of their argument is that plaintiff's claim is unenforceable as it is based on an alleged oral agreement made on behalf of third parties, and therefore barred by the statute of frauds. Defendants point out that it was their clients, and not them, who directly benefitted from plaintiff's services. Inasmuch as defendants tacitly admitted that plaintiff's services were rendered on behalf of their clients for their underlying personal injury actions, their claim that they received no benefit from the psychological reports and evaluations of their clients is disingenuous at best. Defendants' bald assertion does not invoke the statute of frauds as a bar to plaintiff's claim especially since questions of fact exist as to whether they did not benefit from plaintiff's services that were performed on their behest ( see, Hewett v. Marine Midland Bank, N.A., 86 AD2d 263, 271 [2nd Dept 1982]; Leonard Lang, Ltd. v Birch Holding Corp., 72 AD2d 806 [2nd Dept 1979]). Therefore, defendants' cross-motion for summary judgment as to this cause of action is denied.
Accordingly, plaintiff's motion for summary judgment on the second cause of action, account stated, is denied. Summary judgment on the second cause of action is granted in favor of the defendant pursuant to CPLR 3212(b). Defendant's cross motion on the first cause of action, services rendered, is denied.
This constitutes the decision and order of the court.