Philip F. Alba, P.C. v Jattan 2025 NY Slip Op 33488(U) September 16, 2025 Supreme Court, Kings County Docket Number: Index No. 507470/2017 Judge: Reginald A. Boddie is an interesting case in which a bench trial of attorney fee claims with legal malpractice defenses ends with an award, but significantly trimmed for “excessive billing.”

“To establish a breach of contract claim, as here, the plaintiff must allege that 1) a contract
exists· 2) plaintiff performed in accordance with the contract; 3) defendant breached its contractual obligations; and 4) defendant s breach resulted in damages (34-06 73, LLC v Seneca Insurance Company, 39 Y3d 44 [2022]; Friends of Wickers Creek Archeological Site, Inc, v Landing on the Water at Dobbs Ferry Homeowner Association, Inc., 198 AD3d 726 [2d Dept 2021]).
The prima facie elements of an account stated are 1) evidence of an account (a bill), based
on a prior transaction between the parties, which was presented by one party to the other, 2) the recipient accepted the account (bill) as correct, either expressly or implicitly by failing to object to the amount stated therein within a reasonable timeframe, and 3) evidence the recipient had promised to pay the amount stated (Santander Bank, NA. v Rubin Trading Corporation, 68 Misc. 3d 1013 [Kings Supreme 2020]).

As the Second Department previously articulated, ‘ An essential element of an account
stat d is that the parties came to an agreement with respect to the amount due regarding the amount due (Episcopal Health Services, Inc. v POM Recoveries, Inc. , 138 AD3d 917 [2d Dept 2016] [citations omitted]). Further, mere silence and failure to object alone cannot be construed as an agreement to the correctness of account. However, the factual situation regarding the transactions absent objection made within a reasonable time may permit the finding of an account stated (id.).

After hearing and weighing the evidence adduced at trial here, the Court finds the evidence
establishes breach of contract, in that Plaintiff and Defendant entered into two contracts, namely the retainer agreements that Plaintiff performed in accordance with the Agreements, that Defendant breached the agreements by not making full payment, and that Plaintiff suffered damages in the form of unpaid attorneys ‘ fees as a result.

In light of the Court’s finding of the existence of two valid contracts, the account stated
claim is dismissed a duplicative. In the alternative, the account stated claim is denied on the ground Defendant objected to the bills as excessive, and accordingly there was no agreement that he would pay the amounts as stated in the bills (Episcopal Health Services, Inc. v POM Recoveries, Inc. , 138 AD3d 917 [2d Dept 2016]). Upon review, the Court also finds the bills to be excessive.

Courts have generally held, “When the terms of a written contract are clear and
unambiguous, the intent of the Parties must be found within the four corners of the contract, giving practical interpretation to the language employed and the reasonable expectations, thus a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms ” RMP Capital Corp. v Victory Jet, LLC, 193 AD3d 836 [2nd Dept 2016], quoting Westchester County Corr. Officers Benevolent Assn. , Inc. v County of Westchester, 99 AD3d 998 [2nd Dept 201.2]). Here the subject Agreements unambiguously provided for payment upon demand, although Linda Alba credibly testified that the Firm was willing to await payment until the estates received the anticipated funds. However Defendant and his brother frustrated those efforts by redirecting the funds to themselves as evidenced by the Stipulation of settlement (Exhibit 13). Accordingly they should not be rewarded for same.

Nevertheless the award of attorneys’ fees must be reasonable and not excessive (RMP
Capital Corp. v Victory Jet, LLC, 193 AD3d 836 [2nd Dept 2016]). The fee should represent the reasonable value of the services rendered (id.).”

“Moreover the determination must be based upon a demonstration of the hours reasonably
expended on the litigation and what is reasonable compensation for the attorney based upon the prevailing rate for similar work in the community. The determination of a reasonable attorney’s fee is left to the sound discretion of the trial court (id.).

Further, pursuant to CPLR 213 , an action for attorneys ‘ fees must be commenced within
six years from accrual of the claim. Therefore, here all outstanding balances incurred prior to April 17 , 2011 are excluded pursuant to the six year statute of limitations, for a total deduction in the amount of 82 836.24, leaving a balance of $85 , 158 . 12 (Ste wart v Stuart 262 AD2d 3 96 [2d Dept 1999]).

Review of the remaining charges demonstrative excessive billing (see Exhibit 4). For
example, on April 17 , 2011 , Plaintiff billed one hour or $400 to review a letter and 50 minutes or $200 to dictate a three -page letter. Telephone conferences were typically billed at a minimum of fifteen minutes, regardless of the length of the call. On May 3, 2011 , dictation of a single affidavit was billed at 2 hours or $800.00. The same day two conferences with the client were billed; one at 4 hours or $975.00, and the second at 1.5 hours or $600. On May 27, 20211 , a conference to discuss status of the litigation was charged at 4 hours or $1,300.
Conclusion
Accordingly, the Court finds that the bills were permeated with excessive billing. Further,
no credentials were provided to this court relative to Philip Alba or any of the associates with which to asses their credentials and experience. Accordingly, the Court finds Plaintiff is entitled to an award of attorneys ‘ fees in the amount of $50,000 plus interest from April 17, 2017.

Plaintiff shall submit a proposed judgment accordingly on notice.”