Don’t rock the boat is often the wrong advice. in LePatner Project Solutions LLC v 320 W. 115 St. 2021 NY Slip Op 01510 Decided on March 16, 2021 Appellate Division, First Department objecting made a big difference in an account stated situation. Counterclaiming for legal malpractice also made a big difference.
“”[E]ither retention of bills without objection or partial payment may give rise to an account stated” (Morrison Cohen Singer & Weinstein, LLP v Waters, 13 AD3d 51, 52 [1st Dept 2004]). Here, plaintiff LePatner Project Solutions, LLC is entitled to summary judgment on its account stated claim against the limited liability corporation defendant only for project management invoices from May 19, 2017 through December 6, 2017, as defendants never timely objected to such invoices. Defendants’ vague assertion that they “raised” the issue with plaintiffs is insufficient to create an issue of fact (Kucker & Bruh, LLP v Sendowski, 136 AD3d 475, 476 [1st Dept 2016]; Zanani v Schvimmer, 50 AD3d 445, 446 [1st Dept 2008]).
While defendants also failed to timely object to plaintiffs’ legal services invoices rendered throughout 2017, defendants’ counterclaim for legal malpractice “is intertwined with . . . plaintiff law firm’s claim for legal fees,” precluding summary judgment on the claim with regard to the invoices for legal services (Emery Celli Brinckerhoff & Abady, LLP v Rose, 111 AD3d 453, 454 [1st Dept 2013], lv denied 23 NY3d 904 ). Plaintiffs also are not entitled to summary judgment on their account stated claim insofar as it seeks payment of the December 19, 2017 additional services invoice, to which defendants timely objected on January 15, 2018 (see Healthcare Capital Mgt. v Abrahams, 300 AD2d 108 [1st Dept 2002]). Plaintiffs failed to establish their entitlement to summary judgment against the individual defendants.”