In Smith, Gambrell & Russell, LLP v 3 W. 16th St., LLC 2024 NY Slip Op 33084(U) September 3, 2024 Supreme Court, New York County Docket Number: Index No. 654238/2021 Judge: Lyle E. Frank, neither the attorney claiming an account stated nor defendants, claiming the passage of the statute of limitations gets summary judgment.

“Plaintiff Smith, Gambrell & Russell, LLP (Plaintiff) commenced this action on July 8, 2021, asserting causes of action for breach of contract, account stated, quantum meruit, unjust enrichment and constructive trust, to recover unpaid attorneys’ fees from defendant 3 West 16th Street, LLC (Defendant) (see complaint [NYSCEF Doc No. 2]).1 For the reasons set forth below, Plaintiffs motion for summary judgment, and Defendant’s motion to dismiss the complaint in its entirety, converted to a motion for summary judgment pursuant to CPLR 3211 ( c ), are denied.”

“Motion sequences numbered 001 and 002 were consolidated for disposition. By decision and order dated December 15, 2022 (December 2022 Decision [NYSCEF Doc No. 52]), this Court granted Defendant’s motion to dismiss, finding that the statute of limitations period on Plaintiffs claims for unpaid fees had expired before this action was commenced, and that Plaintiffs motion for summary judgment was thereby mooted. In doing so, this Court described Plaintiffs arguments in opposition to dismissal, premised on Section 17-101 of New York’s General Obligation Law (GOL), as unavailing because the proof of claim Defendant filed in the Ancona Bankruptcy, which Plaintiff asserted was an acknowledgement of Defendant’s attorneys’ fee debt that restarted the limitations periods on Plaintiffs causes of action, did not renew the limitations period because it “was unrelated to plaintiff and [] the defendant subsequently sued plaintiff for legal malpractice” (id.). On October 3, 2023, however, the Appellate Division, First Department, unanimously reversed the December 2022 Decision, on the law, denying Defendant’s motion on the ground that its post-answer motion to dismiss was untimely under CPLR 3211 ( e) and remanded the matter, directing this Court to notify the parties that it will treat Defendant’s motion to dismiss as a motion for summary judgment in accordance with CPLR 3211 (c), and “to thereafter consider the merits of the motion, and if necessary, to consider the merits of plaintiff’s motion for summary judgment” (First Department Decision [NYSCEF Doc No. 59]).”

“Upon reconsideration, the Defendant’s motion, now for summary judgment, must be denied as Paragraph 102 of the POC is an acknowledgment of Defendant’s legal fee debt sufficient to satisfy Section 17-101, and the date of its filing with the United States Bankruptcy Court occurred less than six years before Plaintiff commenced this action. Section 17-101 of New York’s General Obligation Law (GOL) provides that: “An acknowledgment or promise contained in a writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract whereby to take an action out of the operation of the provisions of limitations of time for commencing actions under the civil practice law and rules other than an action for the recovery of real property” ( emphasis added).”

“Paragraph 102 of the POC satisfies the First Department’s rule as applied in Polimeni (debtor’s personal financial statement, reflecting debts owed to plaintiff creditor, “constituted an ‘acknowledgment or promise’ … sufficient to revive plaintiffs time-barred claims on those debts”) and Banco do Brasil, supra (“an acknowledgement [] must recognize an existing debt and must contain nothing inconsistent with an intention on the part of the debtor to pay it”). Accordingly, Defendant’s motion for summary judgment must be denied.”

“Plaintiff moves for summary judgment on its causes of action for breach of contract, account stated and quantum meruit. Plaintiffs motion for summary judgment for breach of contract is insufficient. To make its prima facie showing of entitlement to summary judgment for breach of contract, it needed to provide “a copy of the agreement, the billing records on the account, and an affidavit from an officer of the company … [averring] that [movant] had fulfilled all of its obligations under the agreement, but had not received the payments from [respondent] required under the agreement” (Yonkers Ave. Dodge, Inc. v BZ Results, LLC, 95 AD3d 774, 774 [1st Dept 2012] [citations omitted]). Plaintiffs submission is deficient as it does not include a copy of its retainer agreement or copies of the unpaid invoices, and so its motion must be denied.”