Vogel v American Guar. & Liab. Ins. Co.  2017 NY Slip Op 02462  Decided on March 29, 2017 Appellate Division, Second Department is the story of a fight between a law firm and its insurer, which will be going to trial.  Did the carrier have to defend this case of legal malpractice which arose over escrowed funds?

“In an action, inter alia, to recover damages for breach of a legal malpractice insurance policy and for a judgment declaring that the plaintiffs are covered under that policy, (1) the defendant American Guarantee & Liability Insurance Company appeals from so much of an order of the Supreme Court, Nassau County (Bruno, J.), dated July 20, 2014, as denied those branches of its motion, made jointly with the defendant Zurich American Insurance Company, which were for summary judgment dismissing the first and second causes of action in the second amended complaint insofar as asserted against those defendants and thereupon searched the record and awarded the plaintiffs summary judgment on the first and second causes of action in the second amended complaint insofar as asserted against those defendants, and (2) the defendants American Guarantee & Liability Insurance Company and Zurich American Insurance Company appeal from a judgment of the same court (Marber, J.) dated November 18, 2014, which, upon the order, is in favor of the plaintiffs and against them in the principal sum of $781,475.39. The plaintiffs cross-appeal, as limited by their brief, from (1) so much of the same order as granted that branch of the motion of the defendants American Guarantee & Liability Insurance Company and Zurich American Insurance Company which was for summary dismissing the third cause of action in the second amended complaint insofar as asserted against them, and (2) so much of the same judgment as failed to award them certain interest.”

“”[A]n insurer can be relieved of its duty to defend if it establishes as a matter of law that there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision” (Allstate Ins. Co. v Zuk, 78 NY2d 41, 45; see Cumberland Farms, Inc. v Tower Group, Inc., 137 AD3d 1068, 1070). “To be relieved of its duty to defend on the basis of a policy exclusion, the insurer bears the heavy burden of demonstrating that the allegations of the complaint [in the underlying action] cast the pleadings wholly within that exclusion, that the exclusion is subject to no other reasonable interpretation, and that there is no possible factual or legal basis upon which the insurer may eventually be held obligated to indemnify the insured under any policy provision” (Frontier Insulation Contrs. v Merchants Mut. Ins. Co., 91 NY2d 169, 175; see 492 Kings Realty, LLC v 506 Kings, LLC, 88 AD3d 941, 943; Exeter Bldg. Corp. v Scottsdale Ins. Co., 79 AD3d 927, 929).

The language of the policy determines the coverage (see Mount Vernon Fire Ins. Co. v Creative Hous., 88 NY2d 347; Certain Underwriters at Lloyd’s London Subscribing to Policy No. SYN-1000263 v Lacher & Lovell-Taylor, P.C., 112 AD3d 434, 434-435; Utica First Ins. Co. v Star-Brite Painting & Paperhanging, 36 AD3d 794, 795-796; Shapiro v OneBeacon Ins. Co., 34 AD3d 259).

Here, in moving for summary judgment, AG/Zurich did not eliminate all triable issues of fact relating to the issue of its duty to defend or indemnify the plaintiffs in the underlying action (see Cumberland Farms, Inc., v Tower Group, Inc., 137 AD3d at 1071; Soho Plaza Corp. v Birnbaum, 108 AD3d 518, 522; Franklin Dev. Co., Inc., v Atlantic Mut. Ins. Co., 60 AD3d at 901). Since AG/Zurich failed to meet its burden as movant, it is not necessary to review the sufficiency of the plaintiffs’ opposition papers. Accordingly, the Supreme Court properly denied AG/Zurich’s motion for summary judgment dismissing the first and second causes of action in the second amended complaint.

However, there are triable issues of fact relating to Vogel’s alleged negligent supervision of the escrow account, and the application of the policy provisions to the circumstances, such that it was not established as a matter of law that the allegations in the complaint require AG/Zurich to defend and indemnity the plaintiffs (see Soho Plaza Corp. v Birnbaum, 108 AD3d at 522; Franklin Dev. Co., Inc. v Atlantic Mut. Ins. Co., 60 AD3d at 901). Accordingly, the Supreme Court erred in searching the record and awarding summary judgment to the plaintiffs on the first and second causes of action.”

Filing a petition in bankruptcy falls into three well-settled paths, Chapters 7,11 and 13.  The rules and the effects of such a filing vary strongly between them.  In a legal malpractice case, the debtor loses its capacity to sue and damages which might go to the litigant now go to the trustee.  As Nicke v Schwartzapfel Partners, P.C.  2017 NY Slip Op 02437  Decided on March 29, 2017   Appellate Division, Second Department shows us, Chapter 13 is different.

“In contrast to Chapter 7 proceedings, the object of a Chapter 13 proceeding is the [*3]rehabilitation of the debtor under a plan that adjusts debts owed to creditors by the debtor’s regular periodic payments derived principally from income. Thus, in a Chapter 13 proceeding, a debtor generally retains his property, if he so proposes, and seeks court confirmation of a plan to repay his debts over a three- to five-year period (see 11 USC §§ 1306[b]; 1322, 1327[b]). Payments under a Chapter 13 plan are usually made from a debtor’s “future earnings or other future income” (11 USC § 1322[a][1]). “Accordingly, the Chapter 13 estate from which creditors may be paid includes both the debtor’s property at the time of his bankruptcy petition, and any wages and property acquired after filing” (Harris v Viegelahn, __US __, __, 135 S Ct 1829, 1835; see 11 USC § 1306[a]). Assets acquired after a Chapter 13 plan is confirmed by the court are not included as property of the estate, unless they are necessary to maintain the plan (see 11 USC §§ 1306[a]; 1326), or the trustee seeks a modification of the plan to remedy a substantial change in the debtor’s income or expenses that was not anticipated at the time of the confirmation hearing (see 11 USC § 1329[a]; In re Solis, 172 BR 530, 532 [Bankr SD NY]). Unlike Chapter 7 proceedings, there is no separation of the estate property from the debtor under a Chapter 13 proceeding, except to the extent that the plan, as confirmed by order of the court, places control over an asset in the hands of the trustee (see Harris v Viegelahn, __ US at __, 135 S Ct at 1835). This is the basis for the conclusion that, while Chapters 7 and 11 debtors lose capacity to maintain civil suits, Chapter 13 debtors do not (see Giovinco v Goldman, 276 AD2d 469; Olick v Parker & Parsley Petroleum Co., 145 F3d at 515-516). Thus, a Chapter 13 debtor keeps all, or at the very least some, of the income and property he or she acquires during the administration of the repayment plan. Accordingly, in this action, it was never the bankruptcy estate, or its creditors, that was damaged by a decrease in the amount awarded in the underlying personal injury action due to the alleged conduct of the defendants. Only the plaintiffs had an interest in the recovery of damages in the personal injury action (see Olick v Parker & Parsley Petroleum Co., 145 F3d at 516). Moreover, it was the plaintiffs and the defendants who were engaged in a face-to-face relationship in the underlying personal injury action and to the extent the defendants allegedly breached a duty in that action the foreseeable harm was to the plaintiffs, not the trustee or the bankruptcy estate. Thus, under the circumstances presented here, the relationship of the plaintiffs to the personal injury action is unique and demands an exception to the general rule regarding privity (see Baer v Broder, 86 AD2d 881).

Accordingly, the Supreme Court erred in granting those branches of the defendants’ separate motions which were pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against each of them for lack of capacity and/or standing to sue.”

Doscher v Mannatt, Phelps & Phillips, LLP  2017 NY Slip Op 01973 Decided on March 16, 2017 Appellate Division, First Department is a case with Judiciary Law § 487 claims.  Supreme Court dismissed and the Appellate Division affirmed for these reasons:

1.  Collateral estoppel:  Plaintiff had two chances in the arbitration and both were denied;
2. The arbitration award is a valid final judgment;
3. JL § 487 does not apply to anything but court proceedings; not arbitrations or administrative proceedings;
4. JL § 487 does not apply to proceedings outside of NYS;
5. This misconduct is neither “egregious” enough nor a “chronic and extreme pattern of behavior”.

Daniel R. Wotman & Assoc., PLLC v Chang   2017 NY Slip Op 02141  Decided on March 23, 2017  Appellate Division, First Department is a 2010 case which has finally reached its final resting place.  What started as a fee collection case ends as a fee collection case, with the legal malpractice issues dismissed and affirmed on appeal.

“In this action commenced by plaintiff to recover legal fees, defendant asserted a counterclaim for legal malpractice. Plaintiff moved for summary judgment dismissing that counter-claim and in response, defendant cross-moved for leave to amend the counterclaim to expand and alter her theory of recovery.

Supreme Court providently exercised its discretion in denying defendant leave to amend her legal malpractice counterclaim. The motion for leave to amend came years after the counterclaim was first asserted and well after the conclusion of discovery. Moreover, defendant failed to articulate a reasonable excuse for her delay in amending the counterclaim and was unquestionably in possession of all the facts she needed to seek leave at an earlier time in the litigation (see Holliday v Hudson Armored Car & Courier Serv., 301 AD2d 392 [1st Dept 2003], lv dismissed, denied 100 NY2d 636 [2003]).

The motion court also properly granted plaintiff summary judgment dismissing the counterclaim. Defendant’s proof failed to demonstrate that plaintiff was negligent in any way (Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 [2006]).”

Pro-se legal malpractice cases often unearth interesting descriptions of human behavior.  Sometimes they are baffling.  This is an example.

Checksfield v Berg  2017 NY Slip Op 01924  Decided on March 16, 2017  Appellate Division, Third Department.

“Plaintiff commenced this legal malpractice action in March 2002, alleging that defendant failed in his responsibility to commence an action on plaintiff’s behalf against his former employer. Defendant was served with the summons with notice and complaint in May 2002 and defaulted in appearing. Matters rested there until 2015, when plaintiff moved for a default judgment and defendant cross-moved to dismiss the complaint pursuant to CPLR 3215 (c). Supreme Court granted the cross motion, prompting this appeal by plaintiff.

We affirm. CPLR 3215 (c) provides that, where a “plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed” (see CitiMortgage, Inc. v Lottridge, 143 AD3d 1093, 1094 [2016]; Aurora Loan Servs., LLC v Gross, 139 AD3d 772, 773 [2016]). “To establish ‘sufficient cause,’ the party opposing dismissal must demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action” (Aurora Loan Servs., LLC v Hiyo, 130 AD3d 763, 764 [2015] [citations omitted]; see Micheli v E.J. Builders, 268 AD2d 777, 779 [2000]).

Assuming without deciding that plaintiff articulated a potentially meritorious claim against defendant, he did not provide a reasonable excuse for his delay in pursuing it. Plaintiff [*2]stated his legally unsupported belief that the case was “on indefinite extension” after the attorney who prepared the complaint withdrew from representation. Plaintiff then explained that, after defendant “wouldn’t talk” to another attorney he consulted, he embarked upon ill-defined efforts to “check into [defendant’s] financials” out of court. Even had these assertions been backed by any competent proof, however, they in no way justify over a decade of procedural inaction on plaintiff’s part (see Counsel Abstract, Inc. Defined Benefit Pension Plan v Jerome Auto Ctr., Inc., 23 AD3d 274, 275-276 [2005]; Monzon v Sony Motor, 115 AD2d 714, 714-715 [1985]). Thus, in the absence of a reasonable excuse for the delay, Supreme Court properly dismissed the action as abandoned (see Perricone v City of New York, 62 NY2d 661, 663 [1984]; Ohio Sav. Bank v Decaudin, 129 AD3d 925, 926 [2015]; Memorial Hosp. v Wilkins, 143 AD2d 494, 494-495 [1988]).”

Ziming Shen v Morvillo, Abramowitz, Grand, Iason, Silverberg, P.C. 2017 NY Slip Op 30500(U)  March 8, 2017  Supreme Court, County of New York  Docket Number: 150808/2016
Judge: Erika M. Edwards is a rare example of a criminal defense attorney legal malpractice case which is not dismissed on the typical grounds that plaintiff cannot show actual innocence.  Instead, it was dismissed on more familiar documentary evidence grounds.  In other words, plaintiff could not prove that defendant departed from good practice.  Defendant did not have to rely upon
“actual innocence” or “trial strategy” or “subsequent attorney malpractice” although each was available as a defense.

“Plaintiffs Ziming Shen and Joanna Fan (“Plaintiffs”) brought this action against Defendant Morvillo, Abramowitz, Grand, Jason, Silverberg, P.C. (“Defendant”) seeking to recover damages for Defendant’s alleged failure to conduct a sentencing hearing, called a Fatico hearing, in Plaintiffs federal criminal case. ”

“For the reasons set forth herein, Defendant’s motion to dismiss is GRANTED to the extent that Plaintiffs’ Amended Verified Complaint is dismissed against Defendants and Defendant’s motion for sanctions and other relief is DENIED. ”

“Plaintiffs’ claims set forth in their Amended Verified Complaint must be dismissed I because the causes of action ill the complaint are primarily based on Defendant’s alleged promise to conduct a Fatica hearing, Defendant’s failure to conduct the hearing, Defendant’s inherent conflict of interest through its joint representation of Plaintiffs and Defendant’s excessive billing without conducting the Fatica hearing. Plaintiffs now attempt to withdraw their malpractice cause of action and attempt to change their primary factual basis to Defendant’s excessive billing on unnecessary matters and for billing to prepare for a hearing they never intended to conduct. However, such alteration would still·be insufficient to support any of Plaintiffs’ remaining causes of action. Plaintiffs’ malpractice claim is also dismissed because Plaintiffs failed to demonstrate Defendant’s failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession andth~t such attorney’s breach proximately caused Plaintiffs’ actual damages (McCoy v Feinman, 99 NY2d 295, 301 [2002]). Plaintiffs also failed to establish that but for Defendant’s negligence, Plaintiffs would have.prevailed in the underlying matter in question (Tydings v Greenfield, Stein & Senior, LLP, 43 AD3d 680, 682 [Pt · Dept 2007]). ”

“Although Plaintiffs argue that Defendant promised to conduct a Fatico hearing in emails prior to beginning its representation, according to the evidence submitted by both parties, it is clear that Defendant never promised to conduct a Fatica hearing, but merely advised Plaintiffs in substance that they had the right to challenge the loss amount, but based on the information provided at the time, Defendant could not assess the strength of the arguments of either side. Furthermore, the retainer agreement contemplated such hearing by requiring an additional $100,000 retainer fee should a sentencing hearing be required where it would be necessary to present evidence and/or call and cross-examine witnesses regarding the loss amount and appropriate Sentencing Guidelines range. Such hearing was not promised, nor was it the sole basis for the scope of Defendant’s representation. Clearly, the documents· submitted refute Plaintiffs’ claims that Defendant made such promise.”

There are two alternative paths in a legal malpractice statute of limitations argument on when the statute commences.  The two choices are at the giving of the challenged advice or when all the elements of a cause of action exist such that a claim may properly be brought.  Obviously the second theory may yield later dates and defeat summary judgment motions on the statute.  What happens when a litigant fails to argue the second theory?

Estate of Smulewicz v Meltzer, Lippe, Goldstein & Breitstone, LLP 2017 NY Slip Op 30483(U) March 15, 2017  Supreme Court, New York County  Docket Number: 152264/16
Judge: Barbara Jaffe discusses not one but two tolls of the statute:  continuous representation and insanity.  However, what might have been the winning argument was not pled.

“Sometime in early 2008, Renate Smulewicz engaged defendant Jaw firm to devise an “estate planning and tax reduction plan.” By Jetter dated February 6, 2008, defendant provided Smulewicz with a sumrµary of the plan, whereby it created an LLC to which Smulewicz deeded her apartment, and creat~d a trust to which she both gifted and sold her interest in the LLC in exchange for a $2,340,000 promissory note. (NYSCEF 12). By invoice addressed to Smulewicz on the same day, defendant lists the following pertinent services rendered: “Gift by [Smulewicz] often (10%) percent interest in [the LLC] to THE SMULEWICZ FAMILY TRUST by Assignment Agreement; … [Smulewicz] selling ninety (90%) interest in [the LLC] to THE SMULEWICZ FAMILY TRUST.” (NYSCEF 13). ”

“An action for legal malpractice, “regardless of whether the underlying theory is based in contract or tort,” must be commenced within three years of its accrual. (CPLR 214[6]). A claim of legal malpractice accrues “when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court.” The date of accrual depends on when the defendant committed the malpractice, not when his or her client discovered it. (McCoy v Feinman, 99 NY2d 295, 391 [2002]; Hahn v Dewey & LeBoeuf Liquidation Trust, 143 AD3d 547, 547 [Is1 Dept2016]; Landow v Snow Becker Krauss, P.C., 111 AD3d 795, 767 [2d Dept 2013]). However, the three-year statute may be tolled when the representation is continuous, and a plaintiff may avoid dismissal by showing that there exists an issue of fact as to whether the representation was continuous. (Sendar Dev. Co., LLC v CMA Design Studio P. C., 68 AD3d 500, 503 [P1 Dept 2009]; 860 F(fth Ave. Corp. v Superstructures-Engrs. & Architects, 15 AD3d 213, 213 [ P1 Dept 2005]). The continuing representation must “pertain[] to the matter in which the attorney committed the alleged malpractice,” and the attorney and client must have reasonably intended for the professional relationship to continue past the time that the cause of action accrued. (Shumsky v Eisenstein, 96 NY2d 164, 167 [2001]; see Williams v Pricewaterhouse Coopers LLP, 9 NY3d 1, 10 [2007]). The provision of subsequent legal services pertaining to “discrete and severable transactions,” however, does not toll the statute. (Parlato v Equitable L(fe Assur. Socy. of US., 299 AD2d 108, 114-.115 [Pt Dept 2002], Iv denied99 NY2d 508 [2003]; see Gristede v Morris & McVeigh, 192 AD2d 424, 425 [1st Dept 1993]). The statute of limitations may also be tolled if, at the time the cause of action accrues, the plaintiff is “under a disability because of infancy or insanity … [and] the time within which the action must be commenced shall be extended to three years after the disability ceases or the person under the disability dies.” (CPLR 208). The toll applies only to those “who are unable to protect their legal rights because of an over-all inability to function in society.” (McCarthy v Volkswagen of Am., Inc., 55 NY2d 543, 548 [1982]; Rodriguez v Mount Sinai Ho~p., 96 AD3d 534, 535 [l’t Dept 2012]).  ”

“While not raised by plaintiffs, the September 2015 letter supports an inference that Smulewicz’s estate was not assessed the $830,000 tax until sometime after her death in April 2014, and thus, while the underlying malpractice occurred in February 2008, the damages were not discernible until the tax was assessed. Even if the estate was assessed immediately, in April 2014, having commenced the action within three years thereof, plaintiffs would have been timely in commencing it. (See generally Kronos, Inc. v A VX Corp., 81 NY2d 90, 94 [ 1993] [“The Statute of Limitations does not run until there is a legal right to relief. Stated another way,· accrual occurs when the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint.”]; see also La Bello v Albany Med. Ctr. Hosp., 85 NY2d 701, 706 [1995] [same]; Bonded WaterproofingServ., Inc. vAnderson-BernardAgency, Inc., 86 AD3d 527, 530 [2d Dept 2011] [negligence claim against insurer did not accrue until plaintiff sustained damages, i.e., where plaintiffs request for coverage was rejected]; McCoy v Feinman, 291 AD2d 799, 803 [41 h Dept 2002] [Hayes, J. & Scudder, J., dissenting], affd99 NY2d 295 [“Plaintiff does not contend that the cause of action accrued on the date on which she discovered the malpractice, as suggested by the majority; rather, she contends only that it accrued when she was able to plead the elements of the cause of action.”]). Nevertheless, as plaintiffs do not raise this issue, and in light of contrary authority (see Ackerman v Price Waterhouse, 84 NY2d 535, 541-542 [ 1994] [consistent with policy promoting “fairness to defendant and society., s interest in adjudication of viable claims not subject to the vagaries of time and memory,” malpractice claim accrued when plaintiff received and relied on tax advice, not when IRS assessed deficiency]), I adhere to the finding that the cause of action for malpractice accrued on February 6, 2008, and is thus, untimely. ”

Kasowitz, Benson, Torres & Friedman LLP v Amira  Nature Foods, Ltd.  2017 NY Slip Op 30488(U) March 13, 2017 Supreme Court, New York County  Docket Number: 158126/2016
Judge: Carol R. Edmead is a fine example of the attorney fee claim-legal malpractice counterclaim paradigm.  This one ended well for the law firm.

“On August 6, 2015, Bruce Wacha (“Wacha”), Defendant’s Chief Financial Officer, engaged Plaintiff to represent Defendant in connection with a short selling attack against it.2 On August 7, 2015, the parties signed the written retention agreement (“Retention Agreement”), wherein Defendant agreed to “investigate, advise, advocate, and potentially litigate concerning, among other things, the dissemination of misinformation related to [Defendant], the manipulation of its securities, and harm caused to its business, reputation, and interests” (Retention Agreement, at p.1 ). The Retention Agreement further states that, “[i]n addition to legal fees, you will be charged for other expenses incurred in connection with our representation of you …. This retention may also include investigative work by our affiliate Intelligence Options LLC” (“IO”) (id. at p.2).”

“On August 19, 2015, Plaintiff withdrew as counsel with Defendant’s consent. On November 3, 2015, Defendant e-mailed plaintiff for the return of the remainder of the retainer fee. On November 5, 2015, Plaintiff sent Defendant its invoice-for the first time-for services provided from August 6, 2015 until August 21, 2015 (the “Invoice”).3 The aggregate amount of Plaintiffs representation of Defendant totaled $23 7 ,603 :98: fees of $143,236 for legal work, and costs of $94,367.98, of which $91,843.36 was attributable to investigative services by IO (Id.) ”

“To state a cause of action for account stated, plaintiff must allege defendant’s receipt and retention of the subject statement of account ~ithout proper objection within a reasonable time (Goldmuntz v. Schneider, 99 A.D.3d 544, 952 N_.Y.S.2d 172 [1st Dept 2012]). Where an account is rendered showing a balance, if the party receiving the account fails to dispute its correctness or completeness, that party will be bound by it as an account stated, unless fraud, mistake or other equitable considerations are shown (Shaw v. Silver, 95 A.D.3d 416, 943 N.Y.S.2d 89 [1st Dept 2012], citing Peterson v. !BJ Schroder Bank & Trust Co, 172 A.D.2d 165 [1st Dept 1991]). General objections to an invoice are insufficient to defeat a motion for summary judgment (Morrison Cohen Singer & Weinstein, LLP v. Ackerman, 280 A.D.2d 355, 356, 720 N.Y.S.2d 486 [1st Dept 2001 ]). ”

“Plaintiff fails to demonstrate a prima facie showing that it is entitled to summary judgment for its account stated claim. Plaintiffs submissions indicate that Wacha issued sufficiently specific written objections to Plaintiffs Invoice. First, Wacha’s November 16, 2015 e-mail identifies a specific objection: the excessiveness of the Invoice compared with the time devoted an~ scope of work Plaintiff completed. Further, Plaintiffs subsequent email response to Wacha on December 9, 2015 acknowledges Wacha’s objection to the Invoice by attempting to justify the amount billed vis-a-vis work performed, considering the circumstances in which it was accomplished. Second, Wacha’s December 31, 2015 e-mail specifically objects to the disbursements.and billing for legal services after the Notice and Summons were filed, as addressed within the Invoice ((see Herrick, Feinstein LLP v. Stamm, 297 A.D.2d 477, 746 N.Y.S.2d 712 [1st Dept 2002] (holding that “a trier of fact could reasonably conclude that defendant’s alleged statement … with plaintiff that he was “very troubled by the size of the bills then in hand” was sufficiently specific and timely to negate any inference of assent to the invoices.”); see also Collier, Cohen, Crystal & Bock v. MacNamara, 237 A.D.2d 152, 655 N. Y.S.2d 10 [1st Dept 1997] (sufficient proof of a timely objection found where “plaintiffs [law] firm itself wrote to defendant acknowledging his complaints and, in its October 1993 motion to withdraw as counsel, the firm gave defendant’s refusal to pay as its reason for seeking withdrawal, stating “upon receipt of the invoice, Mr. MacNamara expressed his intention not to pay the outstanding balance.)). Further, Defendant’s objections were timely. A lapse of two months between the receipt and the objection has been held not so long as to constitute “an unequivocal assent to the balance(s) stated” (Herrick, Feinstein LLP v. Stamm, 297 A.D.2d 477, 478, 478 [1st Dept 2002), quoting Epstein Reiss & Goodman v Greenfield, 102 A.D.2d 749, 750 [1st Dept 1984)). Plaintiff sent the Invoice to Wacha on November 5, 2015. Thereafter, Defendant initially objected on November 16, 2015, eleven days after it received the Invoice, and again on December 31, 2015, just under two months after Plaintiff sent the Invoice. Therefore, the branch of Plaintiffs motion for summary judgment of its account stated claim (Third Cause of Action), is denied. ”

“Plaintiff demonstrates a prima facie showing its entitlement to judgment as a matter of law against Defendant on its breach of contract claim. Specifically, Plaintiff submitted the Retention Agreement, which states that Plaintiff shall provide Defendant legal services in exchange for payment, and further, explicitly states that in the event Plaintiff terminates the Retention Agreement, such “resignation shall not affect [Plaintiffs] right to be paid for all of our previously incurred but unpaid fees? and all of our previously incurred but unpaid charges and disbursements” (Retention Agreement at p.2-3). As the Invoice, Affidavit of Michael Bowe who was “primarily responsible” for Defendant’s legal representation, Plaintiff provided legal services to Defendant. ”