Several Errors Doom this Legal Malpractice Counterclaim

A very familiar scenario in the legal malpractice world is the Attorney Fee Suit / Legal Malpractice Counterclaim.  Facially, this combo is completely predictable and logically there is no shame or second-class status to the legal malpractice counterclaim.  In practice, however, many courts think the counterclaim is a "last-ditch" or equivalent effort to avoid paying justified fees.  In any given instance, the counterclaim may well be both virtuous and justified.

Here, in Schlenker v Cascino  2012 NY Slip Op 33066(U)  December 31, 2012  Sup Ct, Albany County  Docket Number: 5650-11  Judge: Joseph C. Teresi we will never know, because the attorney's account stated claim is granted, and by virtue of collateral estoppel, the counterclaim will be dismissed. 

"Plaintiff commenced this breach of contract / account stated / quantum meruit action claiming that Defendants failed to pay their fee for the legal services he rendered, in the amount of $52,480.94. I Issue was joined by Defendants, who set forth a legal malpractice counterclaim. Discovery has been conducted, a note of issue was filed and a trial date certain has been set (April 8,2013).

Plaintiff now moves for summary judgement granting his account stated and breach of contract causes of action, while also dismissing Defendants' counterclaim. Defendants oppose the motion, and move to strike the note of issue. Plaintiff opposes Defendants' motion. Because Defendants' motion to strike is both procedurally defective and moot it is denied. Plaintiff, however, demonstrated his entitlement to summary judgment on his account stated cause of action, and no material issue of fact was raised. Such holding renders moot Plaintiffs motion for summary judgment on his breach of contract claim.2 Plaintiff additionally demonstrated his entitlement to summary judgment partially dismissing Defendants' malpractice claim.

In general, an account stated is "an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance
due." (Levine v Harriton & Furrer, LLP, 92 AD3d 1176, 1178 [3d Dept 2012], quoting J.B.H., Inc. v Godinez, 34 AD3d 873 [3d Dept 2006] and Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868 [3d Dept 1993], Iv. denied 82 NY2d 660 [2000]). "An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account." (Am. Exp. Centurion Bank v Cutler, 81 AD3d 761, 762 [2d Dept 2011]; Morrison Cohen Singer and Weinstein, LLP v Waters, 13 AD3d 51 [1st Dept 2004]; Jaffe v Brown-Jaffe, 98 AD3d 898 [1st Dept 2012]; Shaw v Silver, 95 AD3d 416 [1st Dept 2012]).


As is specifically applicable here, "[a]n attorney can recover fees on an account stated with proof that a bill ... was issued to a client and held by the client without objection for an unreasonable period of time." (Antokol & Coffin v Myers, 86 AD3d 876,877 [3d Dept 2011], quoting O'Connell & Aronowitz v Gullo, 229 AD2d 637 [3d Dept 1996], Iv. denied 89 NY2d 803 [1996][internal quotation marks omitted]; Miller v Nadler, 60 AD3d 499 [1st Dept 2009]; Geron v DeSantis, 89 AD3d 603 [1st Dept 2011]; Ruskin, Moscou, Evans, & Faltischek, P.C. v FGH Realty Credit Corp., 228 AD2d 294 [1st Dept 1996]). On such claim "it is not necessary to establish the reasonableness of the fee since the client's act of holding the statement without objection will be construed as acquiescence as to its correctness." (Cohen Tauber Spievak & Wagner, LLP v Alnwick, 33 AD3d 562, 562-63 [1st Dept 2006], quoting O'Connell & Aronowitz v Gullo, supra [internal quotation marks omttted]). "Nor does [the attorney's] failure to provide a written retainer agreement bar its claim for an account stated." (Thelen LLP v Omni Contr. Co., Inc., 79 AD3d 605,606 [1st Dept 2010] Iv to appeal denied, 17 NY3d 713 [2011];Roth Law Firm, PLLC v Sands, 82 AD3d 675 [1st Dept 2011]; Kramer Levin Naftalis & Frankel LLP v. Canal Jean Co., Inc., 73 AD3d 604 [2010]; Roth Law Firm, PLLC v Sands, 82 AD3d 675 [1st Dept 2011]; Miller v Nadler, 60 AD3d 499 [1st Dept 2009]). Moreover, "the fact that an invoice is not itemized does not ... prevent an account stated from being created." (ERE LLP v
Spanierman Gallery, LLC, 94 AD3d 492, 493 [1st Dept 2012], quoting Zanani v. Schvimmer, 50
AD3d 445 [1st Dept 2008]).

With the burden shifted, Defendants raised no triable issue of fact. First, because Defendants' attorney's affirmation is not based upon "personal knowledge of the operative facts [of Plaintiffs account stated claim, it is of no] ... probative value." (2 North Street Corp. v. Getty Saugerties Corp., 68 AD3d 1392 [3d Dept. 2009]; Groboski v. Godfroy, 74 AD3d 1524 [3d Dept. 2010]). Defendants instead rely solely on the affidavit of Salvatore Cascino (hereinafter "Cascino"),4 which neither attaches nor references any supporting documentary evidence. Cascino's conclusory, undetailed, "[s]elf-serving, [and] bald allegations of oral protests are insufficient to raise a triable issue of fact as to the existence of an account stated." (1000 Northern of New York Co. v Great Neck Medical Associates, 7 AD3d 592, 593 [2nd Dept 2004]; Darby & Darby, P.C. v VSI Intern., Inc., 95 NY2d 308 [2000]). Moreover, Cascino neither denied receiving Plaintiffs invoices nor to partially paying them. With such submission, Defendants raised no triable issue of fact.

Turning to Plaintiffs motion for summary judgment dismissing Defendants' legal malpractice counterclaim, "[i]n order to recover damages in a legal malpractice action, [Defendants] must establish that [Plaintiff] failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that [Plaintiffs] breach of this duty proximately caused [Defendants] to sustain actual and ascertainable damages." (Dombrowski v Bulson, 19 NY3d 347,350 [2012], quoting Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 [2007][internal quotation marks omitted]). As amplified by Defendants' bill of particulars, their malpractice claim is based, in part, upon three5 occurrences within Plaintiffs representation of them in criminal prosecutions.

Applicable to this portion of Defendants' malpractice claims, "[Defendants] must have at least a
colorable claim of actual innocence that the conviction would not have resulted absent the  attorney's negligent representation." (Id. at 350; Shields v Carbone, 78 AD3d 1440 [3d Dept 2010]). Defendants, however, resolved such criminal matter by a plea of guilty. Such plea conclusively negates any claim of actual innocence. Accordingly, Plaintiff established his entitlement to summary judgment dismissing Defendants' malpractice claim based on his alleged failure to accept an adjournment, his wrongfully seeking of a global settlement and his failure to move for joinder of duplicitous prosecutions. Because Defendants raised no triable issue of fact,this portion of Defendants' malpractice claim is dismissed."

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