Opinion
04 Civ. 5161 (NRB).
November 10, 2005
Thomas J. Luz, Esq. Pearce Luz LLP New York, NY, Counsel for Plaintiff.
Max Folkenflilk, Esq. Folkenflik McGerity New York, NY, Counsel for Defendant.
Gary L. Mason, Esq. Klafter Mason, L.L.C. Manalapan, New Jersey.
MEMORANDUM AND ORDER
Plaintiff, a law firm, filed this action to recover attorney's fees from the defendant, a former client. The principal amount in controversy is $161,179.26. Plaintiff's complaint contained four causes of action: account stated; breach of contract; quantum meruit and unjust enrichment. Defendant's answer raised numerous defenses and several counterclaims. On September 1, 2005, plaintiff moved for summary judgment on the account stated, breach of contract, and unjust enrichment claims. Defendant has not filed any opposition to the motion.
Plaintiff's motion papers contain copies of the retainer agreement, the invoices sent to the defendant with the accompanying time sheets, and SEC filings which acknowledged the lawsuit and questioned the amount of the liability rather than the fact of a liability. Included in the moving papers are excerpts from the deposition of the president of defendant indicating that while he endeavored to persuade the plaintiff to reduce its bills, he nonetheless told the plaintiff firm to continue to perform services on defendant's behalf. Plaintiff's motion is further supported by the affidavit of Walter Stursberg who recounts the payment of earlier invoices by defendant, the provision of and billing for services between February 2002 and June 2003 without any payment other than a $12,000 payment made during the second quarter of 2003.
We recognize the teaching of the Circuit that an unopposed summary judgment motion does not relieve the district court "of its duty to decide whether the movant is entitled to judgment as a matter of law." Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 242 (2d Cir. 2004). A review of the motion papers establishes that the plaintiff has supported its claims for recovery on both an account stated and breach of contract theory. The support submitted for plaintiff's claim has been outlined above. Without any submission by defendant on this motion, the record is devoid of any challenge to the contemporaneous billings with the exception of defendant's deposition testimony (provided by plaintiff) recounting a request to plaintiff "to cut us a break." This is hardly sufficient to defeat plaintiff's summary judgment motion. The availability of recovery under an account stated theory to lawyers in suits against clients for fees is well established. Kramer, Levin, Nessen, Kamin Frankel v. Aronoff, 638 F.Supp. 714, 719 (S.D.N.Y. 1986). Likewise, recovery under both a breach of contract theory and, in the absence of a written contract, under a quantum meruit theory are established bases for recovery by a law firm for services rendered. See Newman v. Kalderon, 735 N.Y.S. 2d 713, 714 (N.Y.App. Term 2001).
Moreover, under familiar principles of summary judgment, once the moving party has met its burden of production, the burden shifts to the opposing party to demonstrate the existence of a genuine issue of fact requiring resolution by a fact-finder. Reliance on a pleading is insufficient. See generally 11Moore's Federal Practice § 56.13[2] (2005). Without any evidentiary basis, expert or otherwise, to dispute the provision or value of the services rendered by plaintiff, no genuine issue of material fact for trial has been raised and summary judgment is awarded to plaintiff.
Plaintiff should submit a judgment on five days notice to defendant.
SO ORDERED.