Here is a well written and educational decision on a Morgan Lewis motion for summary judgment for legal fees based upon "account stated."
It’s not often that the law firm loses this motion. Read part of Justice Richter’s decision:
In this action, plaintiff-law firm Morgan, Lewis & Bockius LLP ("Morgan Lewis") alleges that its former client, defendant IBuyDigital.com, Inc. ("IBuy"), failed to pay legal bills totaling nearly $800,000. The complaint alleges two causes of action: account stated and quantum meruit. In its answer, IBuy asserts numerous affirmative defenses and counterclaims alleging breach of contract, legal malpractice, fraud, fraudulent inducement and breach of fiduciary duty. In this motion, Morgan Lewis seeks summary judgment on the account stated claim and dismissal of all of IBuy’s affirmative defenses and counterclaims. IBuy cross-moves to dismiss the complaint in its entirety or, in the alternative, to dismiss the quantum meruit claim and to limit the dollar amount of Morgan Lewis’s alleged damages.
"Morgan Lewis moves for summary judgment on its account stated claim. It is well-settled that the receipt and retention of an invoice without objection within a reasonable period of time may give rise to an account stated claim. Werner v. Nelkin, 206 A.D.2d 422 (2d Dept. 1994); Rockefeller Group, Inc. v. Edwards & Hjorth, 164 A.D.2d 830 (1st Dept. 1990). However, "[a] key element of a prima facie account stated claim is evidence that [the plaintiff] delivered one or more invoices for the amount claimed to defendant, so that he received them." Commissioners of State Insurance Fund v. Kassas, 5 Misc.3d 1012A (N.Y.C. Civ. Ct. 2004). Where a plaintiff’s evidence fails to establish that the invoices were properly addressed and mailed, there should be no presumption of receipt, and summary judgment on an account stated claim is inappropriate. Morrison Cohen Singer & Weinstein, LLP v. Brophy, 19 A.D.3d 161 (1st Dept. 2005); Citibank (S.D.), N.A. v. Martin, 11 Misc.3d 219 (N.Y.C. Civ. Ct. 2005) (the plaintiff on an account stated claim must show mailing of the account or alternate proof showing the account was received).
Judged by these standards, the Court concludes that Morgan Lewis has failed to meet its prima facie showing that it is entitled to summary judgment on its account stated cause of action. Morgan Lewis’s claim to summary judgment is supported only by an affidavit of Morgan Lewis partner David J. Sorin. In that affidavit, Sorin states, in conclusory fashion, that Morgan Lewis submitted periodic invoices to IBuy.3 There is no evidence submitted, however, of the basis for Sorin’s knowledge that the bills were in fact mailed, or any proof that they were mailed on a particular date. Of course, the date of mailing is crucial in determining whether the bills were held for a unreasonable time without objection.4 Nor is there any prima facie showing of a regular office procedure for outgoing mail.
In light of these deficiencies, Morgan Lewis’s motion for summary judgment on the account stated claim must be denied. See Morrison Cohen Singer & Weinstein, LLP v. Brophy, 19 A.D.3d at 161 (reversing lower court’s grant of summary judgment on account stated claim due to the plaintiff’s failure to submit evidence of a regular office mailing procedure and the dates when the disputed invoices were allegedly mailed); Legum v. Ruthen, 211 A.D.2d 701 (2d Dept. 1995) (reversing grant of summary judgment on account stated claim where there was no proof as to the date the bill was submitted); Commissioners of State Insurance Fund v. Munkacs Car Service Ltd., 11 Misc.3d 802 (N.Y.C. Civ. Ct. 2006)(dismissing account stated claim after conclusion of the plaintiff’s evidence at trial because the plaintiff provided no evidence that the invoices were mailed to the defendant, let alone received); Commissioners of State Insurance Fund v. Kassas, 5 Misc.3d at 1012A (an inadequate showing of transmittal of invoices compels denial of summary judgment on account stated claim); see also New York & Presbyterian Hospital v. Allstate Insurance Company, 29 A.D.3d 547 (2d Dept. 2006)(summary judgment unwarranted since the affidavit of the plaintiff’s principal did not state that he personally mailed the claims nor describe the office mailing practice or procedures); Response Medical Equipment v. General Assurance Company, 13 Misc.3d 129A (App. Term 1st Dept. 2006)(same); cf. Ruskin, Moscou, Evans, & Faltischek, P.C. v. FGH Realty Credit Corp., 228 A.D.2d 294 (1st Dept. 1996)(granting summary judgment on account stated based on prima facie showing that defendant actually received the bills in question).
Even if the Court were to accept Sorin’s vague affidavit as proof of mailing, there is a disputed issue of fact because IBuy’s Chief Executive Officer Elliot Antebi, to whom the invoices were allegedly sent, has submitted an affidavit stating that he never received any of the invoices. In its reply papers, Morgan Lewis attempts to remedy its failure to set forth a prima facie showing by submitting affidavits from several office workers at Morgan Lewis explaining the firm’s invoice mailing procedures. However, it is well-settled that a plaintiff seeking summary judgment may not cure its failure to establish a prima facie case by submitting the missing evidence by way of reply. Thus, the Court cannot consider these reply submissions.5 See Batista v. Santiago, 25 A.D.3d 326 (1st Dept. 2006)(to meet its prima facie burden, summary judgment movant could not rely on evidence submitted for the first time in its reply papers); Rengifo v. City of New York, 7 A.D.3d 773 (2d Dept. 2004)(same); Migdol v. City of New York, 291 A.D.2d 201 (1st Dept. 2002)(same); Power Cooling, Inc. v. Wassong, 5 Misc.3d 22 (App. Term 1st Dept. 2004)(same); Chase Manhattan Bank v. New Hampshire Insurance Company, 4 Misc.3d 1026A (Sup. Ct. N.Y. Cty. 2004)(same).
This case is strikingly similar to Reliable Medical Services, P.C. v. Travelers Indemnity Company, 12 Misc3d 147A (App. Term 1st Dept. 2006). In that case, the court denied the defendant’s cross-motion for summary judgment on an insurance payment claim because "the affidavit of [the] defendant’s representative, submitted to establish proof of mailing of the verification requests, neither stated that she personally mailed the requests nor described [the] defendant’s mailing office and procedures." 12 Misc.3d at 147A. The Court then went on to reject the defendant’s attempt to remedy the deficiency by submitting proof of mailing in a reply affidavit. See also Mid Atlantic Medical, P.C. v. Travelers Indemnity Company, 12 Misc.3d 147A (App. Term 1st Dept. 2006)(same). Similarly, Morgan Lewis’s submission of its reply affidavits cannot cure its failure to have submitted them in its original motion papers. See Abramson v. Hertz, 19 A.D.3d 305 (1st Dept. 2005)(the plaintiff failed to adduce evidence sufficient to make out a prima facie entitlement to attorneys’ fees on an account stated theory, and the invoices submitted for the first time in reply papers were properly disregarded by the lower court).