Justice Ling-Cohan writes a basic textbook of how an account stated case is decided in an attorney fee setting in Mintz & Fraade, P.C. v Docuport, Inc.  2012 NY Slip Op 30974(U)  April 11, 2012  Supreme Court, New York County  Docket Number: 603125/07  Judge: Doris Ling-Cohan.  Here the law firm loses.

"Before this court are three motions: (1) Plaintiffs motion pursuant to CPLR $321 l(5) and CPLR 5214(6), to dismiss defendant’s counterclaim of breach of fiduciary duty, upon the ground that it is time barred by the applicable 3-year statute of limitation; (2) Defendant’s cross-motion to dismiss plaintiff’s first, second, third and fourth causes of action; and (3) Plaintiffs motion pursuant to CPLR 53212 for summary judgment on the complaint and to dismiss defendant’s counterclaim.

In support of its motion to dismiss defendant’s counterclaim of breach of fiduciary duty, plaintiff
maintains that such counterclaim is barred by the three (3) year statute of limitation which applies to such a claim. In opposition, defendant argues that its counterclaim is not barred the statute of
limitations, since such counterclaim and plaintiffs claims arise from the same transactions,  occurrences or series of occurrences, namely plaintiffs provision of legal services, and thus, pursuant to CPLR §203(d), defendant may pursue its counterclaim, in the nature of recoupment or set-off against any amount plaintiff seeks to recover on its claims. This court agrees. 

Defendant’s cross-motion to dismiss is procedurally defective in that a statutory basis or dismissal is not supplied. See Rubin v. Rubin, 72 AD2d 536 (1’‘ Dept 1979); Tortorice v. Tortorice, 55 Misc 2d 649 (Sup Court, Kings County 1968); CPLR §2214(a); CPLR $321 l(e). CPLR §2214(a) specifically provides that the grounds for the relief demanded must be specified in the notice of motion, which defendant failed to do herein. Moreover, the affidavit supplied by defendant in support of its crossmotion to dismiss, asserts numerous times, that,“there exists material issues of fact.. .” regarding plaintiffs claims, conceding that dismissal is not warranted at this juncture. [Thus, defendant’s cross-motion is denied.

At the outset the court notes that, while plaintiffs notice of motion indicates that it is seeking summary judgment with respect to (1) the complaint, and (2) defendant’s counterclaim, plaintiff only argues in support of summary judgment based upon its account stated cause of action and dismissal of defendant’s counterclaim, in the moving papers. Thus, as no legal or factual basis has been supplied with respect to granting summary judgment on plaintiffs causes of action for breach of contract, unjust enrichment and quantum meruit, summary judgment is denied as to such causes of action.

As to plaintiffs cause of action for an account stated, plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law, since the invoices supplied in support of its claim do “not set forth [its] hourly rate, the billable hours expended, or the particular services rendered”, as required, and, thus, summary judgment is denied. Ween v. DOW3,5 AD3d 58 (1st Dept 2006). In Peen, the First Department, searched the record, to specifically find that plaintiff was not entitled to summary judgment for failing to make a prima facie showing, because the invoices submitted in support did not include counsel’s “hourly rate, the billable hours expended, or the particular services rendered”. Id. at 62; see  also Kaye, Scholer, Fierman, Hays & Handler, LLP v. L.B. Russell Chemicals, Inc,, 246 AD2d 479 ( 1st  Dept 1998); Herbert Paul, P. C. v. Coleman, 236 AD2d 268 (1‘ Dept 1997); Diamond & Golomb, P. C., 140 AD2d 183 (1 Sf Dept 1988). "