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). "

This attorney fee dispute went through the Supreme Court, the Appellate Division, Arbitration, and back to Supreme court.  In the end opposition papers were rejected, cross-motions were filed 5 hours late, and the case ended up with a big award on the attorney fees.  We wonder if they are collectible?

In Hoffinger Stern & Ross, LLP v Neuman   2012 NY Slip Op 30951(U)   April 10, 2012
Supreme Court, New York County   Docket Number: 113111/09   Judge: Louis B. York we see the Court deciding this issue.

"Plaintiff moves for partial summary judgment on its account stated cause of action, and for dismissal of defendants’ affirmative defenses, Defendants cross-move for summary judgment
dismissing plaintiffs account stated cause of action, and for dismissal of all defendants except
Philip Neuman (Neuman) from this action.
This is an action for breach of contract, account stated, unjust enrichment and quantum
meruit. According to the complaint, plaintiff served as the legal counsel for Neuman and the
other defendants, which are entities owned and or controlled by Neuman, or associates of
Neuman. Neuman retained plaintiff beginning on July 12,2006.For almost two years, plaintiff
was the legal representative of defendants in over a dozen actions in New York and New Jersey.
Plaintiff is seeking the recovery of fees for legal services performed in these actions, as well as
other work done on behalf of defendants.

Plaintiff previously brought a similar action against defendants, entitled Hoffinger Stern & Ross LLP v Neuman, et al., Index No, 105427/08 in this court. Plaintiff sought summary judgment against Neuman on its account stated cause of action. The court in that action held that, pursuant to Part 137 of the Rules of the Chief Administration (Rules), defendant had the right to arbitrate a fee dispute. The court therefore dismissed the action. Plaintiff claimed that it gave Neuman thirty days written notice of his right to seek arbitration. Neuman never filed a request for arbitration. Plaintiff thereafter brought the present suit, again seeking summary judgment on the account stated cause of action, this time against defendants, jointly and severally.

In a decision dated May 5,201 0 (the May 5,2010 decision), this court held that Neuman
had waived his right to arbitrate and could be sued in court.The court granted plaintiff summary judgment on the account stated cause of action and granted dismissal of defendants’ affirmative defenses on the ground that they were inadequately pleaded. Defendants sought a reargument and/or renewal of the May 5,20 10 decision, which was denied. However, on appeal, the Appellate Division, First Department, reversed the May 5, 2010 decision, holding that there was an issue of fact as to whether or not defendants objected to a bill  that was issued one day before plaintiff brought the first action. The dismissal of the affirmative defenses was also reversed on the ground that plaintiff would not have been prejudiced if defendants sought leave to replead.  Plaintiff is now moving again for summary judgment on his account stated cause of action, this time related to a single invoice, dated March which he allegedly sent to defendants. He seeks the amount of $654,651.

According to plaintiff, defendants’ counsel requested an adjournment, and asserted
that opposition papers would be served on plaintiff by noon on November 15,2011. The parties
thereafter executed a stipulation, which was submitted to the court, providing that defendants
agreed to waived their right to file opposition papers if they were not served by the abovesaid
time and date.

Plaintiff asserts that defendants’ counsel served plaintiff belated papers, on 4:59 p.m. on
November 15. The papers included the cross-motion, Defendants’ counsel allegedly informed
plaintiff that they were unaware of the due time. Defendants’ counsel also deny that there was a
default on their part. Plaintiff seeks to enforce the terms of the stipulation, and demands that the
cross motion and opposition papers be rejected as a matter of law.

The court finds that defendants are precluded from relying on the Grande decision. They had the option of raising this issue when they failed to make a timely cross motion pursuant to the PCO. Once they assented to the stipulation, they were bound to strictly comply with its terms. In the absence of any other assertion of good cause, defendants cannot bring their untimely cross motion. Therefore, the cross motion for summary judgment is denied. The court will consider defendants’ opposition to plaintiffs motion, as plaintiff have not been prejudiced by the delay,

Here, as in the previous motion, plaintiff raises similar arguments, though it concentrates on only one invoice, And defendants assumes the same position as previously. As the court examines the record, it finds that, with respect to the March invoice, there is no evidence of Neuman objecting or questioning the nature or amount of this invoice. The court will grant partial summary judgment to plaintiff.

In the Third Department certain types of cases seem to predominate. One such type is tax matters. This case, Dealey-Doe-Eyes Maddux v Schur ; 2011 NY Slip Op 02763 ; Appellate Division,  Third Department falls into that category. A failed tax action against Fulton County, followed by a failed legal malpractice action, followed by two later attempts to get it started once again. The question is, why and how do plaintiffs pro-se- persist?
 

"Defendant, an attorney, represented plaintiff in a tax assessment proceeding that she initiated against the Town of Oppenheim, Fulton County, during which she contends the Town was held in contempt. In 2003, plaintiff commenced this legal malpractice action against defendant alleging that he never filed an order with Supreme Court memorializing the contempt finding it issued against the Town and, as a result, was negligent in the legal representation that he provided her in that proceeding [FN1]. After plaintiff completed the presentation of her proof at trial, Supreme Court granted defendant’s motion to dismiss.

Subsequently, plaintiff filed a motion to renew (see CPLR 2221 [e]) seeking to reopen her action against defendant on the ground that she had recently received a letter from the Chief Clerk of the Supreme and County Courts in Fulton County that constituted new evidence confirming that the Town had been held in contempt in the tax assessment proceeding. Initially, [*2]Supreme Court determined that plaintiff was, in fact, not filing a motion to renew but, instead, was filing a motion to be relieved from the effects of a prior judgment (see CPLR 5015). After making that determination, Supreme Court denied plaintiff’s motion because she had failed to demonstrate that she had acted with due diligence in the discovery of this evidence and, even if it had been available at trial, plaintiff did not establish that there would have been a different result.[FN2]

One year later, plaintiff filed another motion to renew (see CPLR 2221 [e]), once again claiming that she had discovered new evidence which, if admitted at trial, would have resulted in a finding that defendant was negligent. This evidence included papers filed by defendant in support of the application seeking a contempt citation against the Town, as well as letters that plaintiff received from the Supreme and County Court Clerk’s office documenting her efforts to establish that a contempt finding had been issued against the Town. Supreme Court again converted plaintiff’s application into a motion to be relieved from a prior judgment (see CPLR 5015) and denied it because the evidence submitted by plaintiff was not new, nor would it have made a difference if introduced into evidence at trial. Plaintiff now appeals. "
 

Some years ago the Legislature overruled the Court of Appeals, and passed CPLR 214(6). That statute was interpreted to say that all claims against an attorney (some other professionals) were subject to a 3 year statute, whether the claim was made in negligence or contract.

Here, in Walter v Castrataro   2012 NY Slip Op 02676   Decided on April 10, 2012   Appellate Division, Second Department   we see a plaintiff unsuccessfully attempting to get the benefit of a typical 6 year statute for breach of contract.

"On April 16, 2003, the plaintiff signed a retainer agreement, wherein the defendant agreed to represent her in a matrimonial action. By letter dated July 1, 2003, the plaintiff terminated the defendant’s representation. On June 11, 2009, the plaintiff commenced this action, alleging in [*2]her complaint that the defendant "negligently failed to represent the Plaintiff and breached her duties" and "[a]s a result of the Defendant’s breach of contract the Plaintiff has suffered substantial damages[.]" The defendant moved, inter alia, for summary judgment dismissing the complaint on the ground that the complaint sounded in legal malpractice and, thus, was barred by the applicable three-year statute of limitations (see CPLR 214[6]). In her opposing affidavit, the plaintiff stated that she "may have inadvertently misused language on the Summons and Complaint. However, the object of the said application served upon Defendant asserts breach of contract verbatim and notably, Plaintiff never uses the term Legal malpractice" (emphasis in original). In her affidavit, the plaintiff alleged numerous "breaches" by the defendant in connection with the underlying matrimonial action, including a failure to file an application for pendente lite support, failure to move to vacate a certain forensic report, and failure to "modify" a certain stipulation. The Supreme Court, among other things, granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint as time-barred.

The complaint is "nothing more than a rephrasing of the claim of malpractice in the language of breach of contract" (Mitschele v Schultz, 36 AD3d 249, 252). The defendant satisfied her initial burden by demonstrating, prima facie, that the complaint sounded in legal malpractice and that the three-year statute of limitations began to run no later than July 1, 2003 (see Sladowski v Casolaro, 84 AD3d 1056, 1057). In opposition, the plaintiff failed to raise a triable issue of fact, e.g., by submitting proof demonstrating that the statute of limitations was tolled by the continuous representation doctrine, or otherwise (see Tsafatinos v Lee David Auerbach, P.C., 80 AD3d 749, 750). Accordingly, the Supreme Court properly concluded that the action, commenced almost six years after the alleged legal malpractice was committed, was barred by CPLR 214(6), and, thus, properly granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint as time-barred. "

The short answer to the question is yes, they do;  the longer answer to the question is that their rights to first amendment protection of speech is very limited, and litigation over those rights will be stringently examined, or better put, subject to strict scrutiny.  In Ruotolo v Mussman & Northey
2012 NY Slip Op 30860(U)  April 3, 2012  Sup Ct, NY County  Docket Number: 109449/2008
Judge: Saliann Scarpulla both plaintiff’s case against the Police Department and his later legal malpractice case against the attorneys are lost.

"Plaintiff Angelo Ruotolo (“Ruotolo”) is a former New York City Police Department (“NYPD”) officer. In June 2003, while still employed with the NYPD, Ruotolo commenced a civil rights action in the United States District Court for the Southern District of New York (“the civil rights action”) against the City of New York and several NYPD supervisors (collectively “the City defendants”). Non-party William Rold (“Rold”) initially represented Ruotolo in the civil rights action. In the civil rights action Ruotolo alleged that the City defendants retaliated against him for writing a report (“the Report”) about the possible health effects of environmental contamination in the 50th precinct, where Ruotolo served as a Command Safety Officer. Ruotolo alleged that after writing the Report, the City defendants arbitrarily denied him time off and overtime, reassigned him repeatedly, and disciplined him for trivial reasons. Ruotolo asserted claims that these retaliation-or.y actions violated the First Amendment and Due Process clauses of the U.S. Constitution, and various state whistle blower laws. "

"In November 2003, the City defendants moved to dismiss Ruotolo’s complaint, arguing that the Report was not protected by the First Amendment because Ruotolo prepared it in his capacity as a public employee, not as a private citizen. On August 25, 2004, Judge Stein denied the City’s motion with respect to the First Amendment and Due Process claims but granted the motion with respect to the state whistle blower claims. Then, in February 2004, the NYPD charged Ruotolo with visiting an out of borough location while on duty, subsequently placed him on modified duty and confiscated his firearms. Ruotolo eventually retired from the NYPD without a permit to carry a firearm as a civilian. Also, by mid-2004 conflicts had arisen between Ruotolo and Rold, his attorney in the civil rights action, and, in May, 2004, Rold withdrew as counsel for Ruotolo. Thereafter, M&N began representing Ruotolo in the civil rights action."

"Before the action could proceed to trial, the United States Supreme Court issued its decision in Garcetti v. Ceballus, 547 U.S. 410 (2006). In Garcetti, the Supreme Court held that the First Amendment does not “protect[] a government employee €from discipline based on speech made pursuant to the employee’s official duties.” 547 [J.S. at 41 3. Thereafter, the City defendants renewed their motion for summary judgment dismissing Ruotolo’s complaint on the grounds that the Report arose from Ruotolo’s official duties as a police officer, and thus was not protected by the First Amendment. In opposition, M&N argued that the amended complaint should in fairness be read to include Ruotolo’s conversation with the PBA attorney, which M&N contended were not pursuant to Ruotolo’s official job duties.
On July 19,2006, Judge Stein granted the City defendants’ motion for summary judgment, holding that Ruotolo prepared the Report pursuant to his official job duties and therefore had no First Amendment claim with respect to the Report. Ruotolo v. City of New York, 2006 U.S. Dist. LEXIS 49903,  (S.D.N.Y. July 19,2006).’ Because Ruotolo had not pled any claim based upon the conversation with the PBA attorney in either the initial or amended complaints, Judge Stein based his dismissal of the civil rights action solely on claims arising from the Report itself. However, Judge Stein noted that even if he had considered Ruotolo’s discussion with the PBA attorney, Ruotolo’s First Amendment claim would fail because that discussion was held pursuant to Ruotolo’s official job duties, which included ‘‘answering questions about safety issues at the
precinct.” Ruotolo v. City of New Yo& 2006 U.S. Dist. LEXIS 49903, “12-13 (S.D.N.Y.
July 19, 2006)"

"Here, defendants have made a prima face showing that Ruotolo would not have prevailed on his First Amendment claim even if defendants had amended the complaint to include Ruotolo’s conversations with the PBA attorney in April, 2000. The First Amendment does not protect public employees from adverse employment decisions based on communications they make pursuant to their official duties, see Weintraub v. Bd, of Educ., 593 F.3d 196, 200-01 (2d Cir. 2010), and defendants have submitted sufficient  evidence to show that Ruotolo’s conversation with the PRA attorney was made pursuant to his official duties."

"Defendants have also shown that Ruotolo would not have succeeded on a Due Process claim based on the City defendants’ deprivation of Ruotolo’s’s firearms. Where a government agency randomly and arbitrarily deprives a citizen of a protected property interest, due process is satisfied if the state provides an adequate post-deprivation remedy. Hellenic Am. Neighborhood Action Comm. v. New York City, 101 F.3d 877, 880 (2d Cir. 1996)."

Legal malpractice cases require that one prove a departure, a proximate cause, that but for the mistake there would have been a better and different outcome and ascertainable damages.  In Angeles v Aronsky   2012 NY Slip Op 30851(U)  April 2, 2012  Sup Ct, NY County  Docket Number: 100091/2009  Judge: Judith J. Gische  we see how a plaintiff avoids summary judgment on a premises security case.

"Plaintiff alleges that, on December 7, 2007, he was assaulted in the lobby of a building (the Building), located at 1745 Caton Avenue, Brooklyn, New York, in which he was a tenant
and that he hired defendant to represent him in prosecuting his claim (the Underlying Claim) (complaint, 1’8 1, 4 ) . Plaintiff contends that defendant never commenced an action against the
Building’s owner, defendant did not conduct an adequate investigation of the circumstances of the incident, and he was induced by defendant to settle the Underlying Claim against the Building’s owner for $8500, although this was inadequate compensation in light of the severity of his injuries which included having both his arms broken, a broken Jaw and broken ribs (id., 77 10, 17-18).

Defendant asserts that plaintiff voluntarily agreed to the settlement of the Underlying claim, that the Underlying Claim had significant liability problems, warranting a low settlement amount, since plaintiff stated that the door lock leading into the lobby area of the Building was in working order on the day of the incident, that the alleged assailants were unknown and that there were no prior similar incidents in the Building (defendant affidavit, g l 14, S – 6 ) .

Applying the above mentioned legal principles to this motion, defendant’s motion for summary judgment must be denied. Defendant states that a successful result in the Underlying Claim could not be established since plaintiff stated that the door locks were functioning properly on the day of the incident and plaintiff did not know who attacked him (plaintiff EBT, at 17, 19). Plaintiff has, however, presented evidence of accessibility to the Buildings’through a side entrance and that
three men with baseball bats were seen leaving the Building around the time of the alleged assault on plaintiff (Sosa BET, at 52, 54, 59; Luna EBT, at 20-21). since the Court must view the evidence in the light most favorable to plaintiff on this motion (Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931, 932 [2007), plaintiff has raised a factual issue as to the accessibility to the Building through  the unlocked aide entrance (Burgos, 92 NY2d at 551).

 Plaintiff has also presented evidence of a factual issue as to the adequacy of defendant’s investigation into the circumstances of the Underlying claim since neither defendant nor his investigator went to the Building or spoke with the Building’s superintendent and, accordingly, they did not obtain Information about the aide entrance and its accessibility (defendant EBT, at 51-52). Defendant also failed to seek information as to prior similar incidents in the area which would be relevant to foreseeability (fa. at 5 8 ) .

Judiciary Law 487, one of the oldest statutes in the Anglo-American law remains imprecise and widely available to interpretation.  in Strumwasser v Zeiderman ; 2012 NY Slip Op 30772(U)
March 15, 2012 ;Supreme Court, New York County ; Docket Number: 113524/2010;
Judge: Joan A. Madden we see the Court struggling with the question of whether an unstated "extreme chronicity" need be shown.  The statute does not state this element, and while some courts have grafted it onto JL 487, there seems to be no doctrinal basis for it at all.

"The complaint in this action asserts, inter alia, causes of action against J&C for alleged violations of Judiciary Law  487. In its original decision, the court granted J&C’s motion to dismiss the complaint against it, including the claims for violations of Judiciary Law 487, the subject of this motion. The court based its dismissal of the Judiciary Law  487 claims on plaintiffs failure “to articulate or allege a chronic or extreme pattern of behavior on the part of J&C.” Cohen v Law Off ices of Leonard & Robert Shapiro. 18 AD3d 219,220 ( lst Dept 2005). See also Markand v. Bloom, 4 AD3d 128 (1st Dept 2004) Havell v Islam, 292 AD2d 210 (lst Dept, 2002)

Plaintiff now moves for re argument, asserting that a violation of Judiciary Law  487
does not require a showing of a chronic or extreme pattern of behavior but only an intentional
deceit or collusion by an attorney. J&C opposes the motion, citing case law in  the Appellate Division, First Department supporting the court’s interpretation of Judiciary Law  487 and argues that, in any event, no deceit of the kind required by Judiciary Law 487 has been shown.

Although the statute does not expressly require a pattern of chronic delinquency, in certain instances, the Appellate Division, First Department, has made it a prerequisite to recovery.See Dinhofer v, Medical Liability Mut. Ins. Co. , 92 AD3d 480 ( lst Dept 2012); Nason v. Fisher 36 AD3d 486 (1 Dept 2007), but see, Scarborough v Napoli, Kaiser & Bern,LLP, 63 AD3d 1531 [4th Dept 2009); Izko Sportswear CQ,. Inc, v Flaum. 25 AD3d 534 (2d Dept 2006);Amalfitano v, Rosenberg, 533 F3d 117 (2d Cir 2008).

Here, plaintiff makes no claim of chronic delinquency or a pattern of misconduct. Moreover, plaintiffs’ claims under Judiciary Law  487 fail to allege the type of intentional, egregious conduct required to permit recovery under the statute. Specifically, plaintiffs assertions that J&C did not include a page of plaintiffs own business plan stating that the plan was informational purposes in connection with a motion by plaintiff to be relieved of an appraiser’s fee is insufficient to allege the type of conduct sufficient to provide a basis for a claim under Judiciary Law 487. See Ticketmaster v. Lidsky, 245 AD2d 142 (1“ Dept 1997)  holding that “[a]ssertion of unfounded allegations in a pleading, even if made for improper purposes, does not provide a basis for liability under Judiciary Law 487”); O’CalIaghan v. Sifre, 537 FSupp2d 594, 596 (S.D. N.Y. 2008)(noting that “by confining the reach of [Judiciary Law  487 to intentional egregious misconduct, this rigorous standard affords attorneys wide latitude in the course of litigation to engage in written and oral expression consistent with responsible, vigorous advocacy”); compare Scarboroyd v Napoli, Kaiser & Bern. J.LP, 63 AD3d 1531 (denying summary judgment to attorney where record showed that medical malpractice case was dismissed for failure to file a timely note of issue and defendant attorneys asked client to sign a stipulation of discontinuance informing him he could not prevail on the action but not telling him the reason for the dismissal.

‘Although the Second Circuit noted that the pattern of behavior requirement was not in
the text of Judiciary Law 487, it also acknowledged that New York courts, including the First
Department, have required it in certain instances. Furthermore, in the case before it, the District
Court found a “‘persistent pattern of unethical behavior”’ that “constituted ‘a chronic, extreme
Rosenberg, 428 FSupp2d 196,203 (SDNY 2006), and the only issue before the Second Circuit
was whether an attorney’s attempted, but unsuccessful, deceit violated Judiciary Law  487,
which it certified for the New York Court of Appeals. See Amalfitano v. Rosenberg, 12 NY3d 8
(2009)(holding that an attempted, but unsuccessful, deceit may provide a basis for a claim under
Judiciary Law 487). pattern of legal delinquency.”

Appellate Decisions are always correct, well reasoned, and exquisitely written. Sometimes they are recalled and changed.Landa v Blocker 2011 NY Slip Op 06370 ;  Appellate Division, Second Department is an example of the result of persistence in appellate work.
This case is an attorney fee/legal malpractice matter in which it was alleged that the client "approved" monthly statements. If she approved, then an account was stated and there is little to no defense to the attorney fee issue.

So the Appellate Division found, and so the appeal ended, until appellant’s attorney moved to reargue. Here it was successful,

"ORDERED that the judgment is modified, on the law, by deleting the provision thereof awarding the plaintiff the principal sum of $193,525.40; as so modified, the judgment is affirmed, without costs or disbursements, those branches of the plaintiff’s motion which were for summary judgment on the first cause of action of the amended complaint and to strike the eighth affirmative defense are denied, and the order dated April 13, 2009, is modified accordingly; and it is further

The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the first cause of action by tendering invoices for services rendered prior to December 5, 2006, setting forth his hourly rate, the billable hours expended, and the particular services rendered, and establishing that the defendant signed such invoices, failed to timely object to the invoices, and made partial payments thereon (see Landa v Dratch, 45 AD3d 646, 648; Landa v Sullivan, 255 AD2d 295). In opposition, however, the defendant submitted her own affidavit, which was sufficient to raise a triable issue of fact as to whether she acquiesced in the correctness of the invoices (see Interman Indus. Prods. v R.S.M. Electron Power, 37 NY2d 151, 153-154; Rodkinson v Haecker, 248 NY 480, 485). The defendant asserted in her affidavit that she signed the invoices as "approved," not because she actually agreed that the amounts reflected therein were correct, but because she was told that no work would be done on her case unless she signed the invoices. For example, the defendant averred that, during a conference at the plaintiff’s office, the plaintiff produced a number of unsigned billing statements and told the defendant that "the conference was not going to proceed until [she] signed the billing statements." According to the defendant, she signed the billing statements, but "[t]here was no intent on [her] part to accept the billing so that it could never, ever, be challenged in the future."

We note that the plaintiff’s alleged refusal to proceed with his representation of the defendant unless the defendant signed the billing statements "would not constitute duress by reason [*3]of which [the defendant] would be entitled to have the written statement invalidated" (Miller v Storer, 1 AD2d 956, 956, affd 2 NY2d 815). Here, however, the defendant does not seek to invalidate or repudiate either the billing statements or the retainer agreement between the parties. Indeed, unlike the client in Miller, the defendant in this case has not asserted a counterclaim for rescission of any agreement between the parties. Rather, the defendant seeks only to defeat that branch of the plaintiff’s motion which was for summary judgment on his cause of action to recover on an account stated by raising a triable issue of fact as to whether she agreed to or acquiesced in the correctness of the invoices. The facts asserted in the defendant’s affidavit are sufficient to raise a triable issue of fact as to whether her acts of signing the invoices "were, in fact, acquiescence to their correctness" (Ween v Dow, 35 AD3d 58, 62).

The Supreme Court also improperly granted that branch of the plaintiff’s motion which was to strike the eighth affirmative defense alleging that the fees in question were excessive. The plaintiff failed to meet his prima facie burden of establishing his entitlement to judgment as a matter of law in connection with this affirmative defense (see Bomba v Silberfein, 238 AD2d 261). Accordingly, the Supreme Court should have denied that branch of the plaintiff’s motion which was to strike the eighth affirmative defense alleging that the fees in question were excessive, without regard to the sufficiency of the defendant’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). "