Lee Anav Chung White Kim Ruger & Richter LLP v Capone  2022 NY Slip Op 31731(U) May 25, 2022 Supreme Court, New York County Docket Number: Index No. 657197/2020 Judge: Arlene Bluth stands for the proposition that an account stated is stronger than almost any defense.  Failure to object to an attorney’s bills basically precludes any arguments made later that the bill is duplicitive or excessive.

“In this action to recover legal fees, plaintiff moves for summary judgment on its causes of action for breach of the retainer agreement and account stated. It claims it represented defendant in connection with three family court proceedings in Kings County and that defendant refused to pay her outstanding bills. Plaintiff contends that defendant received regular invoices from April 3, 2019 to November 10, 2020 and did not object to any of the invoices during the representation. It points out that defendant made some partial payments after receiving these invoices.

With respect to the counterclaim, which plaintiff contends is one for legal malpractice, plaintiff argues that defendant’s allegations relate to excessive billing and not a legal malpractice claim. Plaintiff observes that in January 2020, defendant affirmed her intention to pay her  outstanding balance but then did not make the payment. It explains that as a small firm, it could not afford to keep such a large balance and so it eventually moved to be relieved as defendant’s counsel.

In opposition, defendant explains that she has not had the opportunity to present her evidence and counterclaims to the Court and complains that all the conferences were adjourned
by stipulation. She insists that the work done by plaintiff was “extremely sloppy” and the bills were unreasonably inflated. Defendant maintains that there were many duplicative requests and that she was double and triple charged.

She recounts an incident in which the attorney for her child (in the custody dispute) was allegedly not licensed to practice and that plaintiff was slow to address the problem. Defendant complains about her child’s attorney and insists this attorney (who apparently worked for nonparty the Children’s Law Center) did significant damage to defendant’s case. She also takes issue with the fact that plaintiff left the representation “mid-trial” although she admits that the case eventually settled.

In reply, plaintiff argues that defendant did not object to any of the factual assertions made by plaintiff and instead focuses on irrelevant topics. It insists that defendant’s counterclaim
is baseless and should be dismissed.”

“Here, plaintiff met its prima facie burden for summary judgment on the account stated cause of action by submitting the retainer agreement (exh 1 to the complaint) and the invoices
(exh 2 to the complaint). Defendant did not deny receiving these invoices nor did she point to objections she raised within a reasonable time of receiving these invoices. In fact, defendant admitted in an email to plaintiff from January 2020 that “Yes, I am aware of the outstanding balance. I can not pay $88,764.73 all at once, as I mentioned to Young on the phone. I can send $10,000 now, and get on a payment plan with the firm for the rest of the money” (NYSCEF Doc. No. 44).

“Specifically, defendants’ receipt and retention of plaintiff’s accounts, without objection within a reasonable time, and agreement to pay a portion of the indebtedness, gave rise to an
actionable account stated, thereby entitling plaintiff to summary judgment in its favor” (Rosenman Colin Freund Lewis & Cohen v Edelman, 160 AD2d 626, 626, 559 NYS2d 249 [1st
Dept 1990]). That is exactly what happened here: defendant admitted she owed plaintiff and expressed her intention to pay the outstanding amount. Defendant cannot object to the invoices only after plaintiff brought this case. ”


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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.